KRYSTY v. TOWN OF ROYALTON (2005)

Supreme Court erred in granting the motion of defendants Town of Royalton and its Superintendent of Highways (Town defendants) for summary judgment dismissing the complaint against them based upon two releases executed by plaintiff in favor of certain third parties. As a preliminary matter, we note that we treat the two releases as a single document (hereafter, release) (see Doldan v. Fenner, 309 A.D.2d 1274, 1275, 765 N.Y.S.2d 401).   We agree with plaintiff that the release is ambiguous with respect to whether the Town defendants are among the “persons, firms or corporations” intended to be released from liability.   That ambiguity lies primarily in the fact that the release “purports to discharge unknown persons yet also denies any fault on their behalf” (Wells v. Shearson Lehman/American Express, 72 N.Y.2d 11, 23, 530 N.Y.S.2d 517, 526 N.E.2d 8, rearg. denied 72 N.Y.2d 953, 533 N.Y.S.2d 60, 529 N.E.2d 428).   In addition, there is a further ambiguity based on the fact that the release purports to extend to all other “persons, firms or corporations,” but thereafter specifies that the “heirs, assigns, fiduciaries, estates, shareholders, directors, officers, partners, joint ventures, agents, employees, insurers, predecessors and successors of the Releasor, Releasee, and Insurer are entitled to ․ the rights ․ of the Release.”   Thus, we reverse the order insofar as appealed from and remit the matter to Supreme Court for an “immediate trial,” at which extrinsic evidence on the issue of the intent of the parties to the release will be admissible (CPLR 3212[c];  see Brown v. O'Neill, 8 A.D.3d 10, 11, 777 N.Y.S.2d 302;  NAB Constr. Corp. v. City of New York, 276 A.D.2d 388, 390, 714 N.Y.S.2d 279;  see generally Amusement Bus. Underwriters v. American Intl. Group, 66 N.Y.2d 878, 880-881, 498 N.Y.S.2d 760, 489 N.E.2d 729).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion of defendants Town of Royalton and Terry Nieman, Superintendent of Highways, is denied, the complaint against those defendants is reinstated, and the matter is remitted to Supreme Court, Niagara County, for further proceedings.

MEMORANDUM: