Abdulla v Gross,

124 AD3d 1255 [4^th Dept., 2015]

The release in this case had two, seemingly inconsistent, clauses. According to the first, it covered everything “from the beginning of the world.” According to the second, it covered one specific occurrence. Is either of the clauses controlling, or is the release ambiguous?

Plaintiff had two successive accidents in her home, and sued her landlord on the first. The parties reached a settlement, and counsel for the defendant thought it encompassed both accidents. The court held that the language of the release indicated otherwise, however, and so plaintiff’s action on the second accident was not barred.

Plaintiff’s first accident was in June of 2009, and her second on September 5 of the same year. As noted, she sued on the first accident only, but of course the second accident came up during disclosure, and defendant obtained disclosure on the injuries arising from it. The injuries were in fact related, with the plaintiff alleging that the September accident exacerbated the injuries sustained in June.

A settlement was reached in June of 2011, but plaintiff failed to send a release and stipulation of settlement until October 23, 2012. The “General Release” had in fact been executed by plaintiff in December of 2011. The defendant accepted the release and stipulation, paid on the settlement and filed the stipulation of discontinuance.

What counsel for the defendant did not know was that on the very last day of the limitations period, on September 5, 2012, the plaintiff had started a second action, based on the second accident. Defendant moved to dismiss the second action based on the release, arguing that the settlement was intended by the parties to encompass both accidents.

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