Marlowe v. Muhlnickel

May 3, 2002
Versions:294 A.D.2d 830
740 N.Y.S.2d 906
2002 N.Y. App. Div. LEXIS 4481

—Appeal from an order of Supreme Court, Onondaga County (Major, J.), entered August 31, 2001, which denied defendant’s motion for summary judgment.

*831It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Sandra Marlowe in a motor vehicle accident. Supreme Court erred in denying defendant’s motion seeking summary judgment dismissing the complaint based on the release signed by plaintiffs. Defendant met her initial burden of establishing her entitlement to judgment as a matter of law by submitting the release and the deposition testimony of plaintiffs acknowledging their signatures on that release (see Fleming v Ponziani, 24 NY2d 105, 111). “Where, as here, the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties” {Booth v 3669 Delaware, 92 NY2d 934, 935). In opposition to the motion, plaintiffs failed to raise a triable issue of fact with respect to their claim that the release is void based on fraud (see generally Mergler v Crystal Props. Assoc., 179 AD2d 177, 181). Present—Wisner, J.P., Scudder, Kehoe, Burns and Gorski, JJ.