Argued April 20, 1999
June 7, 1999
In an action to recover damages for breach of contract, the plaintiff appeals (1) from an order of the Supreme Court, Westchester County (Nicolai, J.), entered April 28, 1998, which granted the defendant's motion to dismiss its second and third causes of action, and (2), as limited by its brief, from so much of an order of the same court, entered November 17, 1998, as, upon granting that branch of its motion which was for reargument, adhered to the original determination, and denied that branch of the motion which was for leave to amend its pleadings.
Gregory Mason, Mineola, N.Y., for appellant.
Alan D. Scheinkman, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Deborah A. Porder of counsel), for respondent.
WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
ORDERED that the appeal from the order entered April 28, 1998, is dismissed, as that order was superseded by so much of the order entered November 17, 1998, made upon reargument; and it is further,
ORDERED that the order entered November 17, 1998, is affirmed insofar as appealed from; and it is further,
ORDERED that the respondent is awarded one bill of costs.
On January 16, 1996, the plaintiff, an electrical contractor, accepted $390,194 from the defendant County, representing settlement of the plaintiff's $451,000 claim against the defendant relative to money allegedly owed it under a construction contract. At the same time, the plaintiff executed an agreement (hereinafter the release) releasing the County from all claims by the plaintiff for work it performed under the contract which antedated the release. In September 1997, the plaintiff commenced this action against the County to recover damages for various alleged breaches of the same contract. The second and third causes of action expressly related to breaches which occurred on or before December 1, 1995. The County moved to dismiss these two causes of action as barred by the release, and the court granted its motion. The plaintiff then moved to reargue, or for leave to amend its pleadings to assert that the release was ineffective because of fraud and coercion. The court granted that branch of the motion which was to reargue, but adhered to the original determination, and otherwise denied the motion. We now affirm.
The plaintiff has waived its right to claim that the release was the product of economic duress by its inaction in asserting this claim, and by retaining the benefits of the $390,194 payment for one year and nine months prior to commencing this action ( see, e.g., Liberty Marble v. Elite Stone Setting Corp., 248 A.D.2d 302; Banque Nationale de Paris v. 1567 Broadway Ownership Assocs., 214 A.D.2d 359; Edison Stone Corp. v. 42nd St. Dev. Corp., 145 A.D.2d 249). Where a party has accepted the benefits of an agreement ( see, New York Tel. Co. v. Jamestown Tel. Corp., 282 N.Y. 365, 372-373), and then seeks to repudiate the agreement on the ground of coercion, it must do so in timely fashion or any objection is waived and the agreement is ratified ( see, e.g., Leader v. Dinkier Mgt. Corp., 26 A.D.2d 683, affd 20 N.Y.2d 393; Port Chester Elec. Constr. Corp. v. Hastings Terraces, 284 App. Div. 966).
Furthermore, it is well established that where an agreement contains a clear disclaimer of reliance on oral representations a party is precluded from making subsequent assertions of fraudulent inducement based on oral representations ( see, e.g., Citibank v. Plapinger, 66 N.Y.2d 90; Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 323; Marine Midland Bank v. Maloy, 174 A.D.2d 994; Scarsdale Natl. Bank Trust Co. v. S.E.W. Prods., 151 A.D.2d 657). In any event, even accepting the plaintiffs allegations at face value, the County's insistence that the plaintiff sign a release as a condition of receiving $390,194, or 87% of its total claim, was not wrongful and did not constitute duress ( see, e.g., Appel v. Ford Motor Co., 111 A.D.2d 731). Finally, the plaintiff has not alleged sufficient facts to sustain a cause of action alleging fraud. Assuming that the County orally promised to pay the plaintiff additional money on its claim in the future if the County's budget permitted, without intending to make good on this pledge, its dereliction would give rise to a cause of action based on breach of contract, not fraud in the inducement ( see, e.g., New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318).