Susmin v. G.D.T. Management Corp.

In a negligence action to recover damages for personal injuries, defendant G.D.T. Management Corporation appeals from an order of the Supreme Court, Queens County, dated August 6,1979, which denied its motion to dismiss plaintiff’s complaint as to said defendant and all cross claims and granted plaintiff’s cross motion to dismiss said defendant’s affirmative defense of release. Order modified by (1) deleting from the decretal paragraph thereof the provision granting plaintiff’s cross motion to dismiss the appellant’s affirmative defense of release, and (2) adding thereto a provision denying said cross motion. As so modified, order affirmed, with one bill of $50 costs and disbursements payable to the appellant by respondent Susmin. The record indicates that there exist triable issues of fact regarding the validity of plaintiff’s alleged release of defendant G.D.T. Management Corporation. Hence, both the latter’s motion to dismiss the complaint and all cross claims and plaintiff’s cross motion to dismiss the affirmative defense of release should have been denied. Mollen, P. J., Damiani, Gibbons and Martuscello, JJ., concur.