The following papers numbered EF 8-25, 27 read on this motion by defendant, Edwin B. Torres, seeking dismissal of plaintiff’s complaint pursuant to CPLR R. 3211(a)(5); Papers Numbered Notice of Motion, Affirmation, Exhibits EF 8-17 Affirmations in Opposition, Exhibits EF 18-25 Affirmations in Reply, Exhibits EF 27 Upon the foregoing papers, it is ordered that this motion is determined as follows: The instant action arises out of an automobile accident which occurred on September 22, 2018. Plaintiff commenced the instant action by filing a summons and verified complaint, dated May 10, 2019 and issue was joined by the service of defendant, Edwin B. Torres’ verified answer, dated August 12, 2019, which contained the affirmative defense that this action is barred based upon a release entered into September 24, 2018, signed by plaintiff, Alex Rodriguez. Pursuant to CPLR 3211(5), a valid release generally precludes a party from commencing an action predicated on a claim that is the subject of the release (Global Mins. & Metals Corp. v. Holme, 35 AD3d 93 [1" Dept. 2006]). Where “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties” (Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. DE C.V., 17 NY3d 269, 276 [201l]. In support of its motion, defendant submits the affidavit of Scott Bromschwig, a claims representative employed by Progressive Insurance Company, which establishes that on September 24, 2018, two days post accident, Mr. Bromschwig met with plaintiff Alex Rodriguez and offered him $750.00 to settle his personal injury claim, which plaintiff accepted. Defendant further submits copies of the signed release and cashed settlement check. Said release specifically releases Edwin B. Torres from “any and all known and unknown personal injuries and damages resulting from an automobile accident which occurred on or about 9/22/18, located at or near 32nd Ave. and 55th St. As such, defendant, Edwin B. Torres has demonstrated a prima facie entitlement to dismissal of this action as against him. In opposition, plaintiff alleges that he was fraudulently induced to sign the subject stipulation and submits an affidavit as follows: On September 24, 2018, only two days after my accident, an adjuster from Progressive Insurance Company, the insurance carrier of the vehicle operated by Edwin Torres, came to my home and asked me some questions about the accident and my injuries. I informed the adjuster that because of my pain, I did not work that day and I did not intend on working on Tuesday, September 25, 2018. I also told the adjuster that I would see how I felt later in the week to see when I would return to work. The adjuster then offered me $750.00 for my lost wages and for “the inconvenience” of having been involved in the accident. I asked the adjuster if I would still be able to pursue a claim for my injuries. The adjuster responded by telling me not to worry, that this payment was not for any injuries or pain and suffering, but was only for my lost wages and being inconvenienced by the accident. The adjuster also told me that I would still have the right to pursue a claim for my injuries. The adjuster then asked me to sign some paperwork. Based on the adjuster’s representation that the payment of $750.00 was only for my lost wages and for “the inconvenience” of having been involved in the accident, I signed the paperwork. The adjuster never told me that by signing these papers, I would not be able to bring a lawsuit as a result of the accident. I never intended to give up my legal right to sue for the injuries that I sustained. I feel that the adjuster lied to me and took advantage of me after I told him that I was not able to work and that I did not know how long I would be out of work for. He met with me only two days after my accident. At that time, I did not know what my injuries were. I later learned that I had a herniated disc and three bulging discs in my neck with nerve damage. Additionally, I have received two epidural injections in my neck. Notwithstanding the arguments of the attorneys representing Edwin Torres, at no time did I want to forfeit my right to sue Edwin Torres for the personal injuries that I suffered. It seems plainly obvious that I would never have intended to release this defendant for merely $750.00. A written Stipulation is treated as a binding contract when it is definite and complete on its face. Stipulations of settlement are favored by the courts and are not lightly cast aside. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation Hallock v. State, 64 N.Y.2d 224 (1984). Fortunately for the plaintiff in this case the Court resides in the real world where even a cursory review of the facts of this matter make it abundantly clear that Scott Bromschwig, an employee of Progressive Insurance Company acted in either a deceptive or fraudulent matter. It is troubling that an insurance carrier’s representative would meet one on one with a unrepresented claimant, who had both a no-fault and potential bodily injury claim two days post accident and induce that person to sign a general release which includes property damage (noting claimant was a passenger), lost wages, expenses, medical costs, loss of consortium and all other claims for a total of $750. The Court notes that defendant’s insurance company representative was certainly aware that the claimant was entitled to no-fault benefits including but not limited to medical and lost wages, yet the generic release he had him sign appears to include medical and lost wage claims with no reference to his no-fault rights as a passenger in their insured’s vehicle. The fact that the representative failed to record such a meeting is a further indication that the representative was well aware of the dubious nature of such a attempted quick resolution of this matter for this amount. As discussed in Haynes v. Garez, 304 A.D.2d 714, 715-16 (2d Dept 2003), “there is a requirement that a release covering both known and unknown injuries be “‘fairly and knowingly made.” This requirement may be applied in situations “falling far short of actual fraud,” such as when, ‘because the releasor has had little time for investigation or deliberation, or because of the existence of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of an injured party’ (Mangini v. McClurg, 24 NY2d 556, 563 [1969]); see Best v. Yutaka, 90 NY2d 833 [1997]; Curry v. Episcopal Health Servs., 248 AD2d 662, 663 [1998]; Horn v. Timmons, 180 AD2d 717, 718 [1992]; Starr v. Johnsen, 143 AD2d 130, 132 [1988]).” Here, as the Court has stated there is little doubt that the actions of defendant boarders on fraud and raises serious ethical concerns under the circumstances but even giving the defendant the benefit of the doubt there are questions of fact as to whether the release was “fairly and knowingly” made as to the injuries at issue and there are questions of fact as to whether there was a mutual mistake concerning such injuries. While inadequate consideration is not necessarily indicative of mutual mistake, the amount paid here appears consistent with payment for plaintiff’s lost time from work and further defendant’s adjuster appeared at plaintiff’s home only two days post accident and negotiated the release only four days post accident. As such, there are issues of fact precluding dismissal of this action. Defendant’s motion is hereby denied in its entirety. This constitutes the decision and Order of the Court. Dated: October 29, 2019
