

Schulbach v Morris & McVeigh, LLP (2015 NY Slip Op 01743)





Schulbach v Morris & McVeigh, LLP


2015 NY Slip Op 01743


Decided on March 3, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 3, 2015

Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.


400734/12 -14385A 14385 14384

[*1] Henrik F. Schulbach, now known as Henrick Barkley De Pearson, etc., Plaintiff-Appellant,
vMorris & McVeigh, LLP, et al., Defendants-Respondents.


Michaels & Smolak, P.C., Auburn (Lee S. Michaels of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Morris & McVeigh, LLP, respondent.
L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Marian C. Rice of counsel), for Judith Dillon Segreti, respondent.
Kelley Drye & Warren LLP, New York (Steven P. Caley of counsel), for Kelley Drye & Warren LLP, Peter Wolfram, Michael S. Insel, Christina M. Mason, Lili Kishinevksy and Brenda Chizinski, respondents.

Judgment, Supreme Court, New York County (Louis B. York, J.), entered May 16, 2013, dismissing the complaint, and bringing up for review orders, same court and Justice, entered April 9, 2013, which granted defendants' motions to dismiss the complaint and denied plaintiff's cross motion for leave to file a third amended complaint, unanimously affirmed, without costs. Appeals from the foregoing orders, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The court properly dismissed the claims against the Kelley Drye defendants based on plaintiff's execution of a general release that clearly and unambiguously waived all claims against those defendants (see Mergler v Crystal Props. Assoc. , 179 AD2d 177 [1st Dept 1992]). Plaintiff's contention that this release was premised on mutual mistake is untenable. All of the facts giving rise to the instant malpractice claims were in existence at the time of the release and plaintiff does not assert that the Kelley Drye  defendants in any way attempted to conceal them
(id. at 182). The claims against the remaining defendants were also properly dismissed, since [*2]plaintiff executed a separate release that discharged the claims that were the predicate for those claims. The court properly exercised its discretion in denying plaintiff's motion for leave to file a third amended complaint asserting claims that would be barred by the release.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 3, 2015
CLERK


