Gray v. Miller — 248 A.D.2d 1000

Majority

p. 1000

Shirley Gray, Respondent, v Agnes M. Miller et al., Appellants.

[670 NYS2d 149]

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint on the ground of release. Defendants met their initial burden, and plaintiff failed to raise a triable issue of fact concerning her contention that defendants obtained the release through fraud

p. 1001

or misrepresentation (see, Verstreate v Cohen, 242 AD2d 862 ). Plaintiff failed to offer proof in admissible form that she was misled by the statement of the “claims specialist” that, in his opinion, she did not have a serious injury. Therefore, “[p]laintiff has made no showing that [her] execution of the release was tainted by fraud, mutual mistake, duress or illegality” (K3 Equip. Corp. v Kintner, 233 AD2d 556 , 558).

Defendants’ motion for summary judgment, made 62 days after the effective date of the amendment to CPLR 3212 (a), is timely (see, Auger v State of New York, 236 AD2d 177 ; see also, Phoenix Garden Rest, v Chu, 245 AD2d 164 ). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.)

Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.

Cases cited

Verstreate v. Cohen 242 AD2d 862 N.Y. App. Div. 1997-09-30 p. 1001
K3 Equipment Corp. v. Kintner 233 AD2d 556 N.Y. App. Div. 1996-11-07 at 558 p. 1001
Auger v. State 236 AD2d 177 N.Y. App. Div. 1997-12-18 p. 1001
Phoenix Garden Restaurant, Inc. v. Chu 245 AD2d 164 N.Y. App. Div. 1997-12-18 p. 1001