Benowski v Track Dr., LLC

Appellate Division of the Supreme Court, Third Department

Jul 16, 2026

CV-25-0305

Versions:

The Law Office of Alfred Paniccia, Jr., Endwell (Alfred Paniccia Jr. of counsel), for appellant.

Hinman, Howard & Kattell, LLP, Binghamton (Jeffrey A. Jaketic of counsel), for respondents.

Clark, J.P.

Appeal from an order of the Supreme Court (Joseph McBride, J.), entered January 17, 2025 in Broome County, which, among other things, partially granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiff is an electrical contractor engaged in the business of installing and maintaining electrical systems in residential and commercial properties. In 2019, plaintiff began installing electrical systems at a renovated commercial property located in Broome County that is jointly owned by defendants Track Drive, LLC and PSM Limited Partnership. Due to plaintiff‘s longstanding business relationship with Track Drive‘s owners, no formal written agreement was executed to memorialize the scope of the work or the terms of the project. However, plaintiff provided Track Drive‘s owners with a written project proposal at the outset of the project that detailed the nature of the work and the expected total price, which amounted to approximately $1.14 million. Although not specifically delineated in the project proposal, the amount listed therein also reflected a 10% retainer fee plaintiff expected to be paid at the end of the work.

Over the course of the project, plaintiff submitted invoices and payment applications to Track Drive‘s representatives, which underwent an approval process. After the project encountered several delays, one of Track Drive‘s owners purportedly asked plaintiff to forgo his retainer fee as a way of compensating defendant L3Harris Technologies, Inc., which was leasing space at the project site. On January 7, 2020, after plaintiff had been paid approximately $800,000 for his work, he signed a written release in which he agreed to waive all claims pertaining to the project upon the receipt of an additional $233,797.23, which was listed as the “entire unpaid balance” due and owing to plaintiff and which did not include the 10% retainer fee.

In May 2021, plaintiff commenced this action seeking to recoup $140,738.47 from defendants, which encompassed the 10% retainer fee plus an additional sum of money he claimed was owed for his work. In January 2022, Supreme Court (Tait, J.) denied defendants’ pre-answer motion to dismiss the complaint. Following joinder of issue and discovery, defendants moved for, among other things, summary judgment dismissing the complaint based upon the January 2020 release. Plaintiff opposed the motion and cross-moved for partial summary judgment dismissing defendants’ affirmative defense of waiver and release, arguing that he did not sign the release, it was not fairly and knowingly made, and it pertained only to the release of liens against defendants’ property and not claims against defendants for money owed under the project. Supreme Court (McBride, J.) granted defendants’ motion for summary judgment, denied plaintiff‘s cross-motion and dismissed the complaint, finding that the clear and unambiguous language of the release barred plaintiff‘s claims and that plaintiff failed to establish a genuine issue of material fact as to whether he signed the release and whether it was fairly and knowingly made. Plaintiff appeals.

We affirm. “Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release. If the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties” (Centro Empresarial Cempresa S.A. v AmÉrica MÓvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011] [internal quotation marks and citations omitted]; see Salewski v Music, 150 AD3d 1353, 1353-1354 [3d Dept 2017]). “Nevertheless, a release must be fairly and knowingly made and thus, like any other contract, may be set aside on the basis of fraud or mutual mistake” (Ford v Phillips, 121 AD3d 1232, 1234-1235 [3d Dept 2014] [internal quotation marks and citations omitted]). The defendants bear the initial burden to demonstrate that there has been a signed release, after which the burden shifts to the plaintiff to demonstrate “that there has been fraud, duress or some other fact which will be sufficient to void the release” (Centro Empresarial Cempresa S.A. v Ame rica Mo vil, S.A.B. de C.V., 17 NY3d at 276 [internal quotation marks and citation omitted]; see Cames v Craig, 181 AD3d 851, 852 [2d Dept 2020]).

In support of their motion for summary judgment, defendants submitted, among other things, deposition testimony, paid invoices pertaining to the project, payment applications submitted by plaintiff during the course of the work, his response to defendants’ interrogatories, and the January 2020 release. As reflected in plaintiff‘s payment application from December 9, 2019, plaintiff had been paid $794,349.00 for the work he performed as of that date. A sum of $233,797.23, plus a 10% retainage fee (amounting to $114,238.47), remained outstanding at that time. During a deposition, one of Track Drive‘s owners testified that, at a meeting held on January 7, 2020, plaintiff agreed to forgo the 10% retainer fee listed in the December 2019 payment application due to delays in completing the work and he signed the January 2020 release during the meeting for that purpose.¹ An individual who handled billing for the subject project and signed the release as a witness also gave sworn deposition testimony to that effect, affirming that she observed plaintiff sign the document.

The January 2020 release states, in relevant part, that “the undersigned [c]ontractor hereby waives, discharges, and releases any and all liens, claims, and rights to liens against the above-mentioned project, and any and all other property owned by or the title to which is in the name of” Track Drive and “acknowledges that the sum of . . . $233,797.23 constitutes the entire unpaid balance due . . . in connection with such project” (emphasis omitted). The release further provides that “the payment of said sum to the [c]ontractor will constitute payment in full and will fully satisfy any and all liens, claims, and demands which the [c]ontractor may have or assert against the [o]wner in connection with said . . . project.” The release contains both plaintiff‘s signature and printed name, as well as a signature by a witness. Defendants also submitted a copy of a check made out to plaintiff‘s company in the amount of $233,797.23 on the same date the release was signed, as well as an affidavit from a forensic document examiner who opined, based upon his examination of the release, that plaintiff‘s signature thereon was “an original . . . ‘wet-inked’ entry” and not a copy of a signature. On this record, defendants satisfied their prima facie burden on their summary judgment motion by proffering evidence that plaintiff signed a broad and unambiguous release waiving his right to bring any claims against defendants pertaining to the project upon his receipt of the additional amount listed therein (which did not include the 10% retainer fee), that he was paid that sum of money and that he was witnessed signing the document (see M.M. v Church of Our Lady of the Annunciation, 203 AD3d 1277, 1278 [3d Dept 2022], lv denied 38 NY3d 911 [2022]; Ivasyuk v Raglan, 197 AD3d 635, 637 [2d Dept 2021]). Accordingly, the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact in opposition.

Plaintiff did not satisfy such burden. In opposition to defendants’ motion and in support of his own cross-motion, plaintiff relied upon, among other things, the same deposition testimony as set forth above, paid invoices for the electrical work performed under the project, and payment applications. The payment applications from September 2019 and December 2019 listed $233,797.23 in labor, plus the 10% retainer fee, as the amount that remained outstanding to plaintiff for his work. Plaintiff also submitted a copy of a partial release he signed on December 9, 2019, which stated that he agreed to “waive . . . all claims . . . and/or any other charges of any kind” pertaining to the project upon receipt of the sum listed in the September 2019 and December 2019 payment applications. Plaintiff testified during his deposition that, although Track Drive‘s representatives initially agreed to pay the outstanding $114,238.47 retainer fee, they subsequently “called [him] in” to their office and told him that they were not going to pay it. Plaintiff claimed that defendants gave no reason for declining to do so. During his deposition, plaintiff testified that he did not recall signing the final January 2020 release that omitted the retainer money. When pressed further during his deposition as to whether he was denying having signed such document, plaintiff stated: “I am saying that it could be my signature, but I don‘t ever remember signing it. I can‘t say that somebody didn‘t copy it, but I am saying that whoever printed that name was not me.” He admitted that he received a check in the amount listed in the final release.

On this record, even viewing the evidence in the light most favorable to plaintiff, we conclude that he did not raise a triable issue of fact sufficient to defeat defendants’ prima facie showing of entitlement to judgment as a matter of law dismissing the complaint. Plaintiff‘s contention that the January 2020 final release is a release of liens against defendants’ property and not a release of claims against defendants to recover money for work performed under the project is flatly contradicted by the plain and unambiguous language of the document, which listed $233,797.23 as the “entire unpaid balance” owed to plaintiff and stated that receipt of such amount would “constitute payment in full and [would] fully satisfy any and all liens, claims, and demands which the [c]ontractor may have or assert against the [o]wner in connection with said contract or project” (emphasis added). Plaintiff also did not come forward with sufficient admissible proof to raise a genuine issue of fact as to whether he signed the final release, as “[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature” and, notably, plaintiff did not deny having signed the document but merely confirmed that he could not recall doing so (Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 384 [2004]; see Community Bank, N.A. v Sharkey, 182 AD3d 681, 683 [3d Dept 2020]; Ginty v American Funds Serv. Co., 121 AD3d 1452, 1452 [3d Dept 2014]; Wood v Converse, 263 AD2d 860, 861 [3d Dept 1999]).²

To the extent plaintiff relies on the partial release he signed in December 2019 — which included the 10% retainer fee — to establish a triable issue of fact as to the parties’ intent with respect to the scope of the January 2020 final release, insofar as the final release was clear and unambiguous and did not encompass the retainer fee, we do not “look to extrinsic evidence to determine the parties’ intent” (Rubycz-Boyer v Mondragon, 15 AD3d 811, 812 [3d Dept 2005], lv denied 5 NY3d 703 [2005]; see Stevens v Town of Chenango [Forks], 167 AD3d 1105, 1106 [3d Dept 2018]). In any event, the partial release was superseded by the subsequent final release governing the same subject matter (see generally Pope Contr., Inc. v New York City Hous. Auth., 214 AD3d 519, 520 [1st Dept 2023]).

We also are unpersuaded by plaintiff‘s argument that there are questions of fact as to whether the January 2020 final release was “fairly and knowingly made.” A release may be set aside on this basis in situations falling short of actual fraud when, “because the releasor has had little time for investigation or deliberation, or because of the existence of overreaching or unfair circumstances, it [would be] inequitable to allow the release to serve as a bar to the claim of the injured party” (Johnson v Lebanese Am. Univ., 84 AD3d 427, 430 [1st Dept 2011] [internal quotation marks and citation omitted]; see Mangini v McClurg, 24 NY2d 556, 566 [1969]; Wei Qiang Huang v Llerena-Salazar, 222 AD3d 1033, 1034 [2d Dept 2023]). However, unlike many of the cases relied upon by plaintiff that have found questions of fact as to whether a release should be set aside on this ground, this is not a personal injury action in which an injured party signed a broad release waiving the ability to recover damages from an accident (compare Pastrana-Ortiz v Wemple, 239 AD3d 1290, 1293 [4th Dept 2025]; Wei Qiang Huang v Llerena-Salazar, 222 AD3d at 1034; Pacheco v 32-42 55th St. Realty, LLC, 139 AD3d 833, 834 [2d Dept 2016]; Powel v Adler, 128 AD3d 1039, 1040 [2d Dept 2015]). Nor is this an employment discrimination case where a plaintiff signed a release purporting to preclude additional employment discrimination claims that were unknown at the time the release was signed (compare Johnson v Lebanese Am. Univ., 84 AD3d at 427-428). Rather, plaintiff‘s argument in support of setting aside the release on this ground is based primarily on an assertion that there was a misunderstanding as to the scope of the January 2020 release and whether it precluded his ability to recover the additional 10% retainer fee. However, plaintiff‘s own unilateral mistake about the scope of the January 2020 release is an insufficient ground to set it aside (see M.M. v Church of Our Lady of the Annunciation, 203 AD3d at 1279-1280; Matter of Walter, 180 AD3d 1201, 1204-1205 [3d Dept 2020]; Ford v Phillips, 121 AD3d at 1235). Upon reviewing the evidence plaintiff submitted in support of his cross-motion and in opposition to defendants’ motion, we conclude that plaintiff fell short of raising a triable issue of fact as to whether the release was fairly and knowingly made (see Trepeta v Mobiquity Tech., Inc., 241 AD3d 967, 970 [2d Dept 2025]; Rivera v Wyckoff Hgts. Med. Ctr., 113 AD3d 667, 671 [2d Dept 2014], lv denied 24 NY3d 910 [2014]). Our determination renders academic plaintiff‘s remaining argument that his cross-motion for partial summary judgment should have been granted.

Fisher, Powers, Mackey and Corcoran, JJ., concur.

ORDERED that the order is affirmed, with costs.

Notes

Track Drive‘s other owner also confirmed during a deposition that there were delays in completing the project and that the contractors on the project agreed to forgo parts of their bills as a way to make up for the inconvenience to L3Harris Technologies, Inc., the lessee.

Plaintiff notes in his reply brief that his sworn affidavit submitted in opposition to defendants’ prior motion to dismiss denied having signed the January 2020 release. To the extent such affidavit was properly before Supreme Court in considering the parties’ respective summary judgment motions, plaintiff‘s statement therein is insufficient to establish a genuine issue of fact in this regard (; ).