Johnson v. Lebanese American University

Andrias, J.,

dissents in a memorandum as follows: The issue before us is whether plaintiffs action alleging discriminatory discharge in violation of the City and State Human Rights Laws is barred by the “Release & Discharge” (the release) he executed after his employment with defendant Lebanese American University (LAU) was terminated. While we all agree that defendants satisfied their prima facie burden on the summary judgment motion, the majority finds that plaintiff raised a triable issue of fact as to the scope of the release based on his alleged understanding that he was signing a limited release intended to cover only the issues directly related to his services, such as wage and benefit claims. Because I believe that plaintiffs subjective belief is insufficient to render the terms of the release unambiguous, and that there is no evidence that would establish that plaintiff was deprived of the opportunity to consult with counsel before signing the release, I respectfully dissent.

On June 9, 2008, plaintiff was told that he was being terminated from his position as marketing communication project manager at LAU due to poor job performance. Thereafter, *434he was told that if he wished to receive severance pay of $4,651.94, he would have to sign a release. On or about June 27, 2008, LAU’s director of operations e-mailed the release to plaintiff for his review and signature. On or about June 30, 2008, plaintiff signed and returned the release, which reads:

“I. . . declare that I have received from [the] University the sum of $4,651.94 as an ex-gratia payment in full settlement of any and all claims and entitlements related to my services of whatsoever nature with the above mentioned University up to June 10, 2008.
“I therefore hereby remise, release and completely discharge [defendant] and all its responsible officers of and from all actions or rights that I may ever have against the University in respect of my above mentioned service.”

In November 2008, plaintiff, who is gay, was allegedly told by a former coworker that she heard that he had been fired because defendant Jabbra was unhappy with his “lifestyle choice.” Plaintiff commenced this action and defendants moved for summary judgment based on the release.

“ ‘[A] valid release which is clear and unambiguous on its face and which is knowingly and voluntarily entered into will be enforced as a private agreement between parties’ ” (Skluth v United Merchants & Mfrs., 163 AD2d 104, 106 [1990], quoting Appel v Ford Motor Co., 111 AD2d 731, 732 [1985]) and will constitute a complete bar to an action on a claim that falls within its scope (see Hack v United Capital Corp., 247 AD2d 300, 301, 302 [1998]). Like any contract, a release must be “read as a whole to determine its purpose and intent,” and extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990] [“before looking to evidence of what was in the parties’ minds, a court must give due weight to what was in their contract”]; see also Kass v Kass, 91 NY2d 554, 566 [1998]). “A contract is unambiguous if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ ” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002], quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]).

Plaintiff asserts that it was his understanding that the release would cover only claims for additional payment or benefits owed for his services and that he did not intend it to apply to any wrongful termination claims. However, “it is not a prerequisite to the enforceability of a release that the releasor be subjectively aware of the precise claim he or she is releasing” (Mergler v *435Crystal Props. Assoc., 179 AD2d 177, 180 [1992]). If the language of a contract, including a release, is clear and unambiguous, “effect will be given to the intention of the parties as indicated by the language employed and the fact that one of the parties may have intended something else is irrelevant” (LeMay v H.W. Keeney, Inc., 124 AD2d 1026, 1027 [1986], lv denied 69 NY2d 607 [1987]; see Moore v Kopel, 237 AD2d 124, 125 [1997] [that one party to an agreement may attach a particular, subjective meaning to a term that differs from the term’s plain meaning does not render the agreement ambiguous]).

In Skluth v United Merchants & Mfrs. (163 AD2d 104, 105 [1990], supra), the plaintiff agreed to “ ‘release and forever discharge [defendant] from all liability of every kind, nature and description’ arising out of his employment subject, in part, to the collection of stated salary payments, his pension rights, and his right to participate in defendant’s comprehensive medical plan at his own expense so long as he was not enrolled in any other group medical program.”

This Court ruled that the quoted language could not be “reasonably construed as restricting the release to claims concerning salary, medical benefits or other forms of financial compensation, and no legal authority exists for the proposition that a release must expressly mention a discrimination claim in order to be valid and binding with respect thereto” (id. at 107). Thus, we held that “[s]ince the agreement herein clearly and unambiguously releases defendant from ‘all liability of every kind, nature and description’, the instrument operates as a matter of law to release defendant from any and all claims, whether already accrued or which might arise subsequent to the date of execution, including plaintiffs assertion of age discrimination” (id.).

The language of the release in this case is comparable to the language used in Skluth. By its express terms, the release applies to claims “related to my services of whatsoever nature” and to “all actions or rights that I may ever have against the University in respect of my above mentioned service” (emphasis added). There is no language limiting the scope of the release to wage and benefit claims. By executing a release with this broad language, plaintiff released not only the claims that were specifically in dispute at the time the release was executed but also any claims that he may ever have against defendants related to his service for LAU. The term “services of whatsoever nature” is broad enough to encompass any aspect of the employer-employee relationship between the parties.

Given the unambiguous language of the release, there is no *436need to look for extrinsic evidence of the parties’ intent (see Greenfield v Philles Records, 98 NY2d at 569). In any event, plaintiffs subjective understanding as to the scope of the release does not constitute objective evidence that the release was not intended to cover all claims arising out of his employment and, contrary to the majority’s view, no objective evidence was submitted that would suffice to raise an issue of fact as to whether all the parties intended the release to be of limited scope.

The majority also believes that plaintiffs failure to consult with counsel is a relevant factor and that “it can hardly be said, as the court did, that plaintiff had ‘ample’ opportunity to consult an attorney before signing the document.” However, in Skluth, we explained: “The other factor deemed crucial by the Supreme Court, plaintiffs failure to consult with an attorney, also does not preclude enforcement of the release. The court properly found that plaintiff is an educated, experienced businessman with knowledge of release letters such as the one that he was asked to execute. He had ample time to seek legal advice prior to signing the instrument and was, even accepting plaintiffs own version of the facts, not prevented or discouraged from doing so by defendant. There is, certainly, no requirement in the law that consultation with a lawyer must occur in order to render a contractual obligation enforceable, even one relinquishing a discrimination claim, so long as the agreement has been knowingly and voluntarily entered into. Although a party’s representation by an attorney is some evidence of the knowledge and volition with which a particular contract was made, the absence of counsel is far less critical than the opportunity to consult counsel” (163 AD2d at 107 [citations omitted]).

Plaintiff, a marketing communication project manager at LAU, was not forced to sign the release on the spot, and he does not aver that he was given an ultimatum by defendants that they would withdraw the compensation offer if he did not sign and return the release by a date certain. Indeed, plaintiff acknowledges that he “had the release for approximately two days before [he] signed it.” Thus, there is nothing to show that plaintiff was in any way deprived of the opportunity to consult with counsel or pressured to forgo that right.

Accordingly, I would affirm the judgment dismissing the complaint.