Is Your Release Fair?

Any contract you enter into will probably have a general release claim, releasing the company from any liability, damages, etc.  However, even these releases are limited and you should know your rights.  “Agreements to release from any and all responsibility or liability of any nature whatsoever or any loss or property, or personal injury will not bar claims based on negligence.”  Trummer v. Niewisch, 17 A.D.3d 349, 350 (2d Dep’t 2005.)

General releases, or exculpatory clauses as it is known by the courts, are “viewed as wholly void where it purports to grant an exemption from liability for willfull [intentional] or grossly negligent [reckless] acts, or where a special relationship exists between the parties such that an overriding public interest demands that such a contract be rendered ineffectual [ex: pools, gyms or other places of public amusement where a fee is charged, parking garages, owners and general contractors in contracts for construction, renovation or alteration of a building, or catering halls and their customers.”]  Princetel, LLC v. Buckley, 95 A.D.3d 855, 856 (2d Dep’t 2012.)

DEFAULT JUDGMENT

Should a New York court submit a default judgment against a Defendant, that party has one year to vacate the default, upon a successful showing of reasonable excuse, lack of prejudice to the Plaintiff and an affidavit of merit to Defendant’s defense.  Unless the Defendant can show he was never properly served (in which case there is no time restraint), a court will deny the motion if an attempt to vacate was made after the one year had passed.  CPLR 5015(a)(1).  See Cuadra v. City of New York