        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1149
CA 14-00571
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


NICOLE ABDULLA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ARI GROSS, DEFENDANT-APPELLANT.


GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (JUSTIN HENDRICKS
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered June 14, 2013. The order denied the motion
of defendant to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced a personal injury action
(hereafter, first action) seeking damages for injuries she allegedly
sustained on June 3, 2009 in a slip and fall accident at her
residence, which was owned by defendant. During discovery in the
first action, plaintiff’s attorney informed defendant’s attorney that
plaintiff had either exacerbated her injuries or refractured her leg
on September 5, 2009 in a second slip and fall accident at her
residence. Thereafter, the parties engaged in settlement negotiations
and further discovery, which consisted primarily of the exchange of
authorizations and medical records related to the alleged injuries
arising from the September 2009 accident. A settlement conference was
held in June 2011 and, within a couple of days, plaintiff accepted
defendant’s settlement offer.

     For over a year thereafter, defendant’s attorney sent
correspondence to plaintiff’s attorney requesting, inter alia, a
release and stipulation of discontinuance. In the meantime,
unbeknownst to defendant’s attorney, plaintiff commenced the instant
action on September 5, 2012, alleging that she sustained serious
personal injuries in the second accident. On October 23, 2012,
plaintiff’s attorney sent correspondence to defendant’s attorney
enclosing, inter alia, a “General Release” that had been executed by
plaintiff on December 15, 2011. In relevant part, the release stated
that defendant, in exchange for providing plaintiff with the agreed-
upon settlement amount, was “released and forever discharged . . .
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                                                         CA 14-00571

from all manner of actions, causes of action, suits, . . . claims and
demands whatsoever” that plaintiff “ever had, now has or which [her]
successors and assigns, heirs, executors or administrators, hereafter
can, shall or may have for, upon or by reason of any matter, cause or
thing whatsoever from the beginning of the world to the day of the
date of those present . . . More specifically, for injuries sustained
in a slip and fall incident which occurred on June 3, 2009, in the
City of Lackawanna, County of Erie and State of New York.” Defendant
made payment on the settlement and filed a copy of the stipulation of
discontinuance in November 2012.

     After learning of the instant action in January 2013, defendant’s
attorney requested that plaintiff discontinue the action on the ground
that the previous settlement encompassed any injuries plaintiff
allegedly sustained in the September 2009 accident. Defendant joined
issue by service of an answer and, upon plaintiff’s refusal to
discontinue the instant action, defendant moved to dismiss the
complaint pursuant to CPLR 3211 (a) (1), (5) and (7). Supreme Court
denied the motion, and defendant appeals.

     We reject the contention of defendant that the instant action is
barred by the release signed by plaintiff in the first action between
the parties. “It is well settled that ‘a general release is governed
by principles of contract law’ (Mangini v McClurg, 24 NY2d 556, 562
[1969]; see Litvinov v Hodson, 74 AD3d 1884, 1885 [2010]; Kaminsky v
Gamache, 298 AD2d 361, 361 [2002]) and that, where ‘a release is
unambiguous, the intent of the parties must be ascertained from the
plain language of the agreement’ (Kaminsky, 298 AD2d at 361)” (Dommer
Constr. Corp. v Savarino Constr. Servs. Corp., 85 AD3d 1617,
1617-1618). Moreover, “[i]t has long been the law that ‘where a
release contains a recital of a particular claim, obligation or
controversy and there is nothing on the face of the instrument other
than general words of release to show that anything more than the
matters particularly specified was intended to be discharged, the
general words of release are deemed to be limited thereby’ (Mitchell v
Mitchell, 170 App Div 452, 456 [1915])” (Morales v Solomon Mgt. Co.,
LLC, 38 AD3d 381, 382). Thus, “[w]here, as here, [a] release . . .
contain[s] specific recitals as to the claims being released, and yet
[contains] . . . an omnibus clause to the effect that the releasor
releases and discharges all claims and demands whatsoever which he [or
she] . . . may have against the releasee . . . , the courts have often
applied the rule of ejusdem generis[, i.e., “of the same kind or
class” (Black’s Law Dictionary 594 [9th ed 2009])], and held that the
general words of a release are limited by the recital of a particular
claim” (Camperlino v Bargabos, 96 AD3d 1582, 1583-1584 [internal
quotation marks omitted]).

     Here, we conclude that the language of the release is unambiguous
in specifying that the only claims discharged thereby are those
arising from the injuries plaintiff allegedly sustained in the first
slip and fall accident (see Morales, 38 AD3d at 382; Kaminsky, 298
AD2d at 361). Contrary to defendant’s further contention that we
should consider extrinsic evidence purportedly demonstrating that the
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                                                         CA 14-00571

parties intended the settlement to cover both matters, “[i]t is well
settled that, where the language of a release is clear and
unambiguous, effect will be given to the intention of the parties as
indicated by the language employed and the fact that one of the
parties may have intended something else is irrelevant” (Booth v 3669
Del., 242 AD2d 921, 922, affd 92 NY2d 934 [internal quotation marks
omitted]; see Matter of Schaefer, 18 NY2d 314, 317; Dommer Constr.
Corp., 85 AD3d at 1618).




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
