Aharon v. Kim

In an action to recover damages for personal injuries, etc., the defendant Kwang Kim appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated March 2, 1993, which denied his motion, pursuant to CPLR 3211 (a) (5), to dismiss the complaint insofar as it is asserted against him on the ground that he and the plaintiffs entered into a binding release.

Ordered that the order is affirmed, with costs.

As the trial court correctly concluded, the plaintiffs’ papers in opposition to the appellant’s motion clearly raise an issue of fact with regard to their claim that execution of the release was procured by fraud (see, Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217; cf., Sofio v Hughes, 162 AD2d 518). Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.