Commercial Division Blog
Questions of Fact Precluded Dismissal of Duress Defense on Summary Judgment
On May 25, 2017, the First Department issued a decision in Yoon Jung Kim v. An, 2017 NY Slip Op. 04201, holding that questions of fact precluded dismissal of a duress defense by summary judgment, explaining:
The defense of duress is established upon the showing of a wrongful threat precluding the exercise of free will. The threat of criminal prosecution is sufficient for that purpose. Here, defendants alleged that there was such a threat, as well as the additional threat of deportation, which has also been held to constitute duress. Accordingly, the court erred in holding that defendants did not establish that they signed the note and mortgage under a state of duress.
Plaintiff argues that, even if defendants raised an issue of fact as to whether defendants were under duress when they executed the note and mortgage, their failure to disaffirm those documents before the commencement of litigation is fatal to their claim. The failure to act promptly to disaffirm a contract entered into under duress can be fatal to the defense. However, where during the period of acquiescence or at the time of the alleged ratification the disaffirming party is still under the same continuing duress, he has no obligation to repudiate until the duress has ceased. Here, in her counterclaim, defendant An related events through at least June 2012, only two months before plaintiff commenced the initial action, that constituted a continued, and continuing, pattern of harassment that a finder of fact could determine was part of the same duress that compelled her and her husband to execute the mortgage in the first place.
(Internal quotations and citations omitted).