Legal Malpractice

When is a Release Really Good?

By (Andrew Lavoott Bluestone)

Transactional attorney engaged in lending deals gets a release from the parties.  Of course, litigation between the parties ensues, and the attorneys get roped in.  When and under what circumstances is the release good?  Does there have to be consideration from the attorney to the parties?  Must it be a real exchange of $$ ?

in Seaview Mezzanine Fund, LP v Lopresti ;2011 NY Slip Op 30102(U);;January 14, 2011;n Supreme Court, New York County; Docket Number: 105540/2009; Judge: Louis B. York writes:

"Seaview next argues that the release agreement is unenforceable for lack of consideration because Great Eastern breached the release agreement subsequent to signing it. See Plaintiffs Memorandum of Law in Opposition, at 8-9. The LoPresti defendants reply that this argument is unavailing pursuant to General Obligations Law  15-303, which specifically provides that a release shall nor fail for lack of consideration. See Defendants' Reply Memorandum, at 9- 1 1. The
LoPresti defendants are correct. Under to General Obligations Law  15-303: A written instrument which purports to be a total or partial release of all claims, debts, demands or obligations, or a total or partial release of any particular claim, debt, demand or obligation, or a release or discharge in whole or in part of a mortgage, lien, security interest or charge upon personal or real property, shall not be invalid because of the absence of consideration or of a seal [emphasis added],
The Appellate Division, First Department, routinely enforces this statute in a wide variety of contexts. See e.g. Angel v Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 68 (1st Dept  2007); Collins v E-Magine, LLC, 291 AD2d 350 (1st Dept 2002); Mergler v Crystal Properties Associates, Ltd., 179 AD2d 177 (1st Dept 1992). Therefore, the court rejects Seaview's second opposition argument, and finds that Seaview's complaint should be dismissed on the ground that all of the causes of
action set forth therein are barred by the express language of the release agreement.

Full post as published by New York Attorney Malpractice Blog on February 02, 2011 (boomark / email).