CPLR R. 3211 Motion to dismiss
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds
Lipiner v Santoli, 2009 NY Slip Op 02565 (App. Div., 2nd, 2009)
Counsel for the parties then entered into a stipulation allowing
Santoli to amend her answer to assert a counterclaim against Edward
Lipiner, and she thereafter asserted a counterclaim against Edward
Lipiner for contribution and indemnification. However, Edward Lipiner
then moved to dismiss the counterclaim and the third-party complaint
pursuant to CPLR 3211(a)(5) as barred by the general release. The
Supreme Court denied the motion without an explanation. We reverse.The general release executed by Santoli is neither vague nor
ambiguous, and it releases Edward Lipiner from "all actions, causes of
action, suits . . . damages, judgments . . . . whatsoever from the
beginning of the world to the day of the date of this Release." It is
also undisputed that Santoli was represented by counsel at the time of
the release and that she "willingly" executed the release. Moreover, at
the time of the execution of the release, this action had been
commenced and the third-party complaint, which also sought contribution
and indemnification, had been interposed.Under these facts and circumstances, Santoli's unsubstantiated
allegation that she did not intend the release to bar her
contribution/indemnification claim against Edward Lipiner was
insufficient to defeat the motion to dismiss (see General Obligations Law § 15-108[a], [c]; Barry v Hildreth, 9 AD3d 341; Touloumis v Chalem, 156 AD2d 230; see also McNally v Corwin, 30 AD3d 482; cf., Tarantola v Williams, 48 AD2d 552).
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