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INSURER’S DISCLAIMER OF COVERAGE IN THIS SLIP AND FALL CASE IS NOT SUFFICIENT PROOF THE TENANT FAILED TO PROCURE THE INSURANCE REQUIRED BY THE LEASE, SUMMARY JUDGMENT ON THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined summary judgment on the breach of contract cause of action should not have been granted. The property owner (the church) in this parking lot slip and fall case alleged that the lessee (Stepping Stones) failed to procure the insurance required by the lease. That allegation was based on the insurer’s disclaimer of coverage. The Fourth Department noted that the disclaimer could be erroneous and was therefore not proof of a breach of the lease:

In denying Stepping Stones’s motion in part and sua sponte granting summary judgment to the Church defendants on the breach of contract claims, the court reasoned that the Church defendants were entitled to judgment on the ground that, “[i]f the insurance carrier provided by Stepping Stones fails to cover the broad coverage demanded by the Lease, then Stepping Stones has breached the Lease agreement.”

On appeal, Stepping Stones addresses only the court’s determination with respect to the breach of contract claims. We agree with Stepping Stones that the court erred in granting summary judgment to the Church defendants on those claims, and we therefore modify the order accordingly. The mere fact that the insurance carrier disclaimed coverage for the accident does not establish as a matter of law that Stepping Stones failed to obtain the necessary coverage. It is possible that the insurance carrier’s disclaimer was improper, and that possibility may be explored by way of a declaratory judgment action … . Strong v St. Thomas Church of Irondequoit, 2017 NY Slip Op 05333, 4th Dept 6-30-17

 

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THE DOCTRINE OF PROMISSORY ESTOPPEL CAN BE APPLIED TO BYPASS THE STATUTE OF FRAUDS IF THE RESULT OF ENFORCING THE STATUTE WOULD BE UNCONSCIONABLE, THE RESULT HERE WAS NOT UNCONSCIONABLE. ​

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissent (raising a different issue), agreeing with the Third Department, held that the doctrine of promissory estoppel can be applied to bypass the Statute of Frauds if enforcing the Statute of Frauds would lead to an unconscionable result. Here, however, disagreeing with the Third Department, the Court of Appeals found that enforcement of the Statute of Frauds would not lead to an unconscionable result. The case involved devised property with a mortgage on it. The decedent, in an earlier will, provided that the mortgage should be paid off with estate funds. However, that provisions was not included in a subsequent will. The petitioners sought to enforce an oral agreement to pay off the mortgage. Because the value of the property was about three times the amount of the mortgage, the Court of Appeals reasoned the result was not unconscionable and the Statute of Frauds should be enforced:

“The Statute of Frauds was designed to guard against the peril of perjury; to prevent the enforcement of unfounded fraudulent claims. But, as Professor Williston observed: ‘The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made'” … ,

In other words, equity “will not permit the statute of frauds to be used as an instrument of fraud” … .

We hold that where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds. * * *

The standard for unconscionability where one party is seeking to avoid the statute of frauds must be equally demanding, lest the statute of frauds be rendered a nullity. …

“The strongly held public policy reflected in New York’s Statute of Frauds would be severely undermined if a party could be estopped from asserting it every time a court found that some unfairness would otherwise result. For this reason, the doctrine of promissory estoppel is properly reserved for that limited class of cases where the circumstances are such as to render it unconscionable to deny the promise upon which the plaintiff has relied” … . Matter of Hennel, 2017 NY Slip Op 05266, CtApp 6-29-17

 

RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF.

The Fourth Department, over an extensive dissent, determined a release from liability for flooding on plaintiff’s land did not encompass a breach of contract action concerning the failure of a drainage system. As part of the settlement agreement in the prior action stemming from the flooding, defendant agreed to construct a drainage system which, plaintiff alleges, did not alleviate the flooding:

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It is well settled that settlement agreements and general releases are “governed by principles of contract law”… . Viewing the facts as alleged in the first and second causes of action, for breach of contract, in the light most favorable to plaintiff and affording plaintiff all favorable inferences … ,we conclude that the release does not “evince an intention to encompass the distinct contractual obligations defendant undertook upon which plaintiff’s breach of contract causes of action are premised” … , i.e., the breach of the settlement agreement itself. Marinaccio v Town of Clarence, 2017 NY Slip Op 04962, 4th Dept 6-16-17

CONTRACT LAW (RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF)/RELEASE (CONTRACT LAW, RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF)

THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES, CONVERSION CAUSE OF ACTION CANNOT BE BASED UPON BREACH OF CONTRACT ALONE.

The Second Department determined that El Equity, which financed a line of credit, was a third-party beneficiary of a contract which required El Equity’s approval before funds could be deposited in any accounts other than those designated in the contract between SDS and GBL. El

Equity demonstrated the breach of contract, but was not entitled to summary judgment because the amount of damages was not proven. The Second Department further determined that the failure to deposit funds in violation of the contract will not also support a cause of action for conversion:

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The evidence in admissible form submitted by El Equity demonstrated, prima facie, that it was an intended third-party beneficiary of the SDS Agreement, and that SDS breached that agreement. ” A non-party [to a contract] may sue for breach of contract only if it is an intended, and not a mere incidental, beneficiary'” …  However, ” the identity of a third-party beneficiary need not be set forth in the contract or, for that matter, even be known as of the time of its execution'”… . “A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost”…  ” In determining third-party beneficiary status it is permissible for the court to look at the surrounding circumstances as well as the agreement,'” and ” the obligation to perform to the third party beneficiary need not be expressly stated in the contract'” … .

Here, El Equity was not a party to the SDS Agreement. However, El Equity established, prima facie, that the SDS Agreement was a valid and binding contract between GBL and SDS, and that El Equity was an intended third-party beneficiary of the SDS Agreement… . * * *

El Equity also demonstrated, prima facie, that SDS breached the SDS Agreement. The SDS Agreement required SDS to “pick up all” MMIS checks “and deposit them into the Escrow Account,” and SDS admittedly did not deposit four MMIS checks into the Escrow Account, but gave those checks directly to GBL. Contrary to SDS’s contention, El Equity established, prima facie, that, to the extent that it sustained any damages, those damages were caused, at least in part, by SDS’s breach of the SDS Agreement … . Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 2017 NY Slip Op 04821, 2nd Dept 6-14-17

 

CONTRACT LAW (THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES)/THIRD-PARTY BENEFICIARY (CONTRACT LAW, THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES)/CONVERSION (CONTRACT LAW, CONVERSION CAUSE OF ACTION CAN NOT BE BASED UPON BREACH OF CONTRACT ALONE)

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QUESTIONS OF FACT ABOUT WHETHER DECEDENT’S WIFE IS A BORROWER WITHIN THE MEANING OF THE REVERSE MORTGAGE DOCUMENTS PRECLUDES SUMMARY JUDGMENT, IF DECEDENT’S WIFE IS A BORROWER SHE MAY REMAIN IN THE MORTGAGED PREMISES, IF NOT, FORECLOSURE CAN PROCEED.

The Third Department, over a two justice dissent, determined questions of fact about whether decedent’s wife (defendant) is a “borrower” within the meaning of the reverse mortgage documents precluded summary judgment. If decedent’s wife is a borrower, foreclosure on the mortgage cannot proceed while she resides in the home. If she is not a borrower, foreclosure can proceed upon her husband’s death. The dissent argued that the documents drafted by plaintiff mortgage company were internally inconsistent and the company should therefore be precluded from claiming decedent’s is not a borrower:

Undoubtedly, where there is no extrinsic evidence relevant to an ambiguity in an agreement, “the issue is to be determined as a question of law for the court” … . In contrast, however, “[i]f there is ambiguity in the terminology used . . . and determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, then such determination is to be made by the jury”… . This precedent establishes that the rule “that any ambiguity in a document is resolved against its drafter[] is a rule of construction that should be employed only as a last resort”… .

Here, the extrinsic evidence is relevant to the parties’ intentions as to whether defendant is a “[b]orrower” and is also conflicting on that point. Viewing this evidence in the light most favorable to the nonmoving party in regard to the respective motions for summary judgment, the determination of the parties’ intentions depends on the credibility of extrinsic evidence — including the credibility of defendant’s claim that the parties to the note and mortgage intended for her to be able to remain in the home in the event of her husband’s death — and the choices between the reasonable inferences that can be drawn from the extrinsic evidence. Nationstar Mtge. LLC v Goeke, 2017 NY Slip Op 04521, 3rd Dept 6-8-17

 

FORECLOSURE (REVERSE MORTGAGE, QUESTIONS OF FACT ABOUT WHETHER DECEDENT’S WIFE IS A BORROWER WITHIN THE MEANING OF THE REVERSE MORTGAGE DOCUMENTS PRECLUDES SUMMARY JUDGMENT, IF DEFENDANT IS A BORROWER SHE MAY REMAIN IN THE MORTGAGED PREMISES, IF NOT, FORECLOSURE CAN PROCEED)/CONTRACT LAW (REVERSE MORTGAGE, QUESTIONS OF FACT ABOUT WHETHER DECEDENT’S WIFE IS A BORROWER WITHIN THE MEANING OF THE REVERSE MORTGAGE DOCUMENTS PRECLUDES SUMMARY JUDGMENT, IF DEFENDANT IS A BORROWER SHE MAY REMAIN IN THE MORTGAGED PREMISES, IF NOT, FORECLOSURE CAN PROCEED)/REVERSE MORTGAGE (FORECLOSURE, QUESTIONS OF FACT ABOUT WHETHER DECEDENT’S WIFE IS A BORROWER WITHIN THE MEANING OF THE REVERSE MORTGAGE DOCUMENTS PRECLUDES SUMMARY JUDGMENT, IF DEFENDANT IS A BORROWER SHE MAY REMAIN IN THE MORTGAGED PREMISES, IF NOT, FORECLOSURE CAN PROCEED)

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CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE.

The First Department, reversing Supreme Court, determined questions of fact precluded summary judgment in this breach of contract action concerning the issuance of warrants to purchase shares in defendant GeoResources. The facts of the dispute are too complex to summarize here. The First Department explained the requirements for reformation of a contract, the doctrines of mutual mistake and novation, and the liabilities of assignees:

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A claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake,'” and to succeed, the party seeking relief “must establish by clear, positive and convincing evidence’ that the agreement does not accurately express the parties’ intentions” … . “Reformation based upon a scrivener’s error requires proof of a prior agreement between [the] parties, which when subsequently reduced to writing fails to accurately reflect the prior agreement”… . The parties’ course of performance under the contract, or their practical interpretation of a contract for any considerable period of time, is the most persuasive evidence of the agreed intention of the parties … .

Given the need for “clear, positive and convincing evidence” of mutual mistake … , we find that issues of fact are present that should have prevented summary judgment … . …

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Based on the plain language of the purchase agreements … , any reformation claim that the original purchasers held was assigned … since it qualifies as one of the “rights and benefits incident to the ownership” of the warrants. …

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The elements of a novation are a previously valid obligation, agreement of the parties to the new obligation, extinguishment of the old contract, and a valid new contract … . “A novation will not discharge obligations created under a prior agreement unless it was so intended, and this question may be determined from the writings and conduct of the parties or, in certain cases, from the documents exclusively” … . The party claiming a novation has the burden of proof of establishing that it was the intent of the parties to effect a novation … .

We find that defendant presented no evidence that it and its counterparties intended to effectuate a novation before issuing [the] warrants … .Warberg Opportunistic Trading Fund L.P. v GeoResources, Inc., 2017 NY Slip Op 04537, 1st Dept 6-8-17

 

CONTRACT LAW (CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/REFORMATION (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/MUTUAL MISTAKE (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/NOVATION (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/ASSIGNEES (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/SECURITES  (CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)/WARRANTS (SECURITIES, CONTRACT LAW, CRITERIA FOR REFORMATION, DOCTRINES OF MUTUAL MISTAKE AND NOVATION, AND THE RIGHTS OF ASSIGNEES EXPLAINED IN THIS BREACH OF CONTRACT ACTION CONCERNING THE ISSUANCE OF WARRANTS TO PURCHASE SHARES IN DEFENDANT GEOSOURCE)

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THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE.

The Second Department, reversing (modifying) Supreme Court, determined the exchange of emails concerning the sale of defendant’s property did not satisfy the statute of frauds. Plaintiff’s complaint seeking specific performance should have been dismissed. After defendant agreed via email on a purchase price he learned he could get substantially more for the property and he put the brakes on the sale to plaintiff:

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… [T]he defendant was informed by a real estate broker that the property could be sold for a significantly higher amount; accordingly, the defendant asked the plaintiff to “wait” on moving forward with the execution of a formal contract. The plaintiff insisted that the parties were already bound by their emails, commenced this action for specific performance of the alleged agreement, and filed a notice of pendency on the property. The defendant moved (1) to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7), on the ground that the emails failed to satisfy the statute of frauds, (2) to cancel the notice of pendency pursuant to CPLR 6514(a), (3) for an award of costs and expenses pursuant to CPLR 6514(c), and (4) for an award of sanctions and attorney’s fees pursuant to 22 NYCRR 130-1.1. The Supreme Court denied that branch of the defendant’s motion which was to dismiss the complaint, and, in effect, denied the remainder of the relief sought. We modify.

The emails relied upon by the plaintiff to establish the alleged agreement among the parties for the purchase of the defendant’s apartment were insufficient to satisfy the statute of frauds, as they left for future negotiations essential terms of the contemplated contract, such as a down payment, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities, and were subject to the execution of a more formal contract of sale… . Contrary to the plaintiff’s contention, in the emails exchanged by and between the parties and the defendant’s attorney, the parties expressly anticipated the execution of a formal contract … . Saul v Vidokle, 2017 NY Slip Op 04485, 2nd Dept 6-7-17

 

REAL ESTATE (CONTRACT LAW, STATUTE OF FRAUDS, THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)/STATUTE OF FRAUDS (REAL ESTATE, HE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)/CONTRACT LAW (REAL ESTATE, STATUTE OF FRAUDS, THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)

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CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION.

The Second Department, reversing Supreme Court, determined the choice law provisions in a contract between plaintiff and defendant Unkechaug Indian Nation did not include a clear-cut waiver of sovereign immunity and must be construed against the drafter, the plaintiff here. Therefore the defendant was immune from suit for breach of contract:

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Here, the plaintiff contends that the defendant waived its sovereign immunity by virtue of a choice-of-law provision stating that the contract would be governed by the laws of New York, and by the following provision of the contract:

“[The] parties agree that any claim or controversy regarding this Contract shall be most conveniently and economically resolved in Suffolk County, New York, and therefore, the parties agree that any claim or action brought for enforcement, interpretation or damages under this Contract shall be brought only in Suffolk County and the parties agree to forebear from filing a claim in any other jurisdiction.”

Although this clause requires “any claim or controversy” regarding the contract to be resolved in Suffolk County, it does not require that such claim or controversy be resolved by a state court. Rather, under the clause, a party could bring a claim before a mediator, an arbitrator, a tribal court, a state court, or a federal court, as long as the selected forum was located in Suffolk County. Thus, unlike the cases involving arbitration clauses, this clause does not unequivocally express the defendant’s agreement to be sued in a state court. …

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The fact that the contract also includes a choice-of-law provision does not resolve the ambiguity in the subject clause, since the law of the State of New York could be applied in other forums besides a state or federal court to interpret the contract … . Aron Sec., Inc. v Unkechaug Indian Nation, 2017 NY Slip Op 04413, 2nd Dept 6-7-17

 

INDIAN LAW (SOVEREIGN IMMUNITY, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)/CONTRACT LAW (SOVEREIGN IMMUNITY, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)/IMMUNITY (INDIAN NATION, SOVEREIGN IMMUNITY, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)/SOVEREIGN IMMUNITY (INDIAN NATION, CHOICE OF LAW PROVISIONS OF CONTRACT DID NOT CONSTITUTE AN UNAMBIGUOUS WAIVER OF SOVEREIGN IMMUNITY, THE INDIAN NATION WAS IMMUNE FROM SUIT IN THIS BREACH OF CONTRACT ACTION)

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A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED.

The Second Determined a hearing was necessary to determine whether a postnuptial agreement, which appeared to strip the wife of her assets, was unconscionable. The court explained the relevant law:

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Postnuptial agreements are contracts which require consideration … . Although postnuptial agreements are generally subject to ordinary principles of contract law … , the parties, as husband and wife, have a fiduciary relationship to each other … .To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching … . A motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face… .

Here, it cannot be said that the agreement is fair on its face. It appears from the record that the defendant has received no benefit from the agreement. It also appears that she relinquished all assets of the marriage, along with her inheritance rights and right to spousal support. Where an agreement appears to be so one-sided and unfair that no rational person exercising common sense would make it, and no fair and honest person would accept it, there should be a hearing to determine whether the agreement is unconscionable in substance … . Further, the circumstances under which the agreement was executed must be examined … A reviewing court examining a challenge to a postnuptial agreement will view the agreement in its entirety and under the totality of the circumstances… . Without a hearing to determine the totality of the circumstances, including the extent of the parties’ assets, and the circumstances surrounding the execution of the agreement, it cannot be determined on this record whether equity should intervene to invalidate the parties’ agreement. Barclay v Barclay, 2017 NY Slip Op 04414, 2nd Dept 6-7-17

 

FAMILY LAW (POSTNUPTIAL AGREEMENT, A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED)/CONTRACT LAW (FAMILY LAW, POSTNUPTIAL AGREEMENT, A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED)/POSTNUPTIAL AGREEMENT (UNCONSCIONABLE, A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED)

PLAINTIFF DEEMED TO HAVE READ AND UNDERSTOOD THE SETTLEMENT DOCUMENT BEFORE SIGNING, LEGAL MALPRACTICE COMPLAINT AGAINST HER ATTORNEYS PROPERLY DISMISSED.

The Second Department determined plaintiff’s legal malpractice and fraudulent concealment complaint against her prior attorneys was properly dismissed. Plaintiff alleged she was not aware a document she signed settled a lawsuit for $200,000. The court explained she was deemed to have read and understood the document before signing it:

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” A party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents'” … . Generally, a cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signer is illiterate, blind, or not a speaker of the language in which the document is written … . Here, the … defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action asserted against the … firm … by presenting evidence that the plaintiff could read and understand English, that she had the opportunity to read the document dated June 10, 2009, which expressly stated that she was accepting $200,000 “as full and final compensation for her loss of services claim,” and that she never expressed any difficulty understanding the terms of the document … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether she was incapable of understanding the document signed by her based on her conclusory testimony that “[n]o one . . . explained [it] to me.” Anderson v Dinkes & Schwitzer, P.C., 2017 NY Slip Op 03721, 2nd Dept 5-19-17

CONTRACT LAW (PLAINTIFF DEEMED TO HAVE READ AND UNDERSTOOD THE SETTLEMENT DOCUMENT BEFORE SIGNING, LEGAL MALPRACTICE COMPLAINT AGAINST HER ATTORNEYS PROPERLY DISMISSED)

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