641 N.Y.S.2d 477 | N.Y. App. Div. | 1996
—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied plaintiff’s motion for summary judgment and granted that part of defendant’s cross motion seeking leave to amend the answer to assert the affirmative defenses of release and accord and satisfaction. The court erred, however, in granting that part of the cross motion seeking summary judgment dismissing the complaint based upon a release. Defendant failed to submit proof in evidentiary form establishing its entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562).
Although the release purports to be a general release, it makes specific reference to claims arising out of the construction of the Westchester Pavilion. Defendant’s motion papers reflect the fact that, whatever the intent of the release, the release was prepared in the context of the settlement of those claims. "The meaning and coverage of a general release [depend] on the controversy being settled and upon the purpose for which the release was actually given” (Lefrak SBN Assocs. v Kennedy Galleries, 203 AD2d 256, 257; see also, Matter of Kemp v Perales, 199 AD2d 320, 321-322; Perritano v Town of Mamaroneck, 126 AD2d 623, 624).
We therefore modify the judgment by vacating the second and third decretal paragraphs, denying summary judgment to defendant and reinstating the complaint. Whether the court properly denied that part of the motion by plaintiff seeking to renew its opposition to defendant’s cross motion for summary judgment is moot in view of the foregoing determination (see, Matter of Wood v Cordello, 91 AD2d 1178, 1179). Because plaintiff did not submit proof in evidentiary form establishing its entitlement to judgment as a matter of law, the court properly denied that part of the motion of plaintiff to renew its motion for summary judgment. (Appeal from Judgment of Supreme Court, Nassau County, Alpert, J.—Summary Judg
