Warmhold v. Zagarino
2016 NY Slip Op 07184
N.Y. App. Div.
2016
Check Treatment

Patricia Warmhold, Appellant, v Michael Zagarino, Defendant, and Countrywide Financial Corporation et al., Respondents.

Appellate Division of the Supreme Court of New York, Second Department

40 NYS3d 499

In an action, inter alia, to recover damages for violations of General Business Law §§ 349 and 350, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated December 16, 2013, as denied her motion and her cross motion, in effect, for summary judgment on the issue of liability against the defendants Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Bank of America Corporation, and granted the cross motion of those defendants for summary judgment dismissing the amended complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action alleging, among other things, that Countrywide Financial Corporation, Countrywide Home Loans, Inc., and Bank of America Corporation, as assignee (hereinafter collectively the Countrywide defendants), employed relaxed underwriting standards, reduced documentation requirements, false appraisals, and forgery of borrower income levels for the purpose of consummating unaffordable or high-cost home loans that were destined to fail. She claimed that she was the victim of a high-cost home loan which was destined to fail. After discovery, the Countrywide defendants moved, in effect, pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint insofar as asserted against them as barred by releases executed by the plaintiff when she signed a repayment agreement in 2008, and a loan modification agreement in 2009. The Supreme Court denied that motion, and, on appeal, this Court affirmed, concluding that “the plaintiff sufficiently alleged that the Countrywide defendants procured the release by means of fraud or duress” ().

Thereafter, the plaintiff moved, in effect, for summary judgment on the issue of liability, submitting an unsworn narrative in support of her motion. The Countrywide defendants cross-moved for summary judgment dismissing the amended complaint insofar as asserted against them. The plaintiff cross-moved for summary judgment in her favor.

In an order dated December 16, 2013, the Supreme Court denied the plaintiff‘s motion and cross motion for summary judgment and granted the Countrywide defendants’ cross motion for summary judgment dismissing the amended complaint insofar as asserted against them. The plaintiff appeals.

” ‘A release is a contract, and its construction is governed by contract law’ ” (, quoting ). “[A] signed release shifts the burden of going forward ... to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release” ( [internal quotation marks omitted]; see ).

Here, the Countrywide defendants established their prima facie entitlement to judgment as a matter of law by submitting a loan repayment plan agreement and a loan modification agreement, both of which were executed by the plaintiff and contain releases which, by their terms, unambiguously barred the instant action against them (see ; ; ; ). In opposition, the plaintiff failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to whether the releases were invalid due to illegality, fraud, duress, or mutual mistake (see ; ; cf. ).

Accordingly, the Supreme Court properly granted the Countrywide defendants’ cross motion for summary judgment dismissing the amended complaint insofar as asserted against them, and properly denied the plaintiff‘s motion and cross motion for summary judgment.

Dillon, J.P., Roman, Hinds-Radix and Connolly, JJ., concur.