Allegations Of Coercion, Carve Out Of Claims Concerning Real Property, Do Not Warrant Denial of Motion For Summary Judgment In Lieu Of Complaint

Posted: December 17, 2025 / Written by: Joshua Wurtzel, Channing J. Turner, Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt / Categories Summary Judgment in Lieu of Complaint, Attorney Fees

Allegations Of Coercion, Carve Out Of Claims Concerning Real Property, Do Not Warrant Denial of Motion For Summary Judgment In Lieu Of Complaint

On November 5, 2025, Justice Andrea Masley granted summary judgment in lieu of complaint under CPLR 3213 upon a settlement agreement with confession of judgment plaintiff had entered into with defendant in a prior action. The case is D’Angelo v. Devito, Index No. 651007/2025.

Plaintiff established prima facie entitlement under CPLR 3213 by showing proof of the agreement and a failure to make the required payments, shifting the burden to defendant. Slip op., p. 4. Justice Masley rejected each of defendant Devito’s efforts to meet that burden:

First, DeVito contends that, in accordance with the terms of the Settlement Agreement, he agreed to relinquish his interest in a parcel of unimproved real property . . .. He asserts that the deed to this property was signed over and improperly released to plaintiffs even though it was supposed to be held in escrow. (Id.¶¶ 11, 20.) Thus, DeVito argues that the Settlement Agreement poses an obligation beyond the simple payment of money. . ..

However, the Settlement Agreement plainly does not require DeVito to relinquish an interest in any property. In fact, the language [cited by Devito] . . . disclaims the applicability of the Settlement Agreement to any claims concerning the alleged property in question. Pursuant to the Settlement Agreement any claims relating to the specified real property are not released.

Slip op. pp. 4-6.

Defendant’s attempts to identify other issues of fact also failed:

DeVito asserts that he was “forced to sign” the Confession of Judgment despite that there was an understanding that JDS would be responsible for paying the settlement sum owed to plaintiffs. . . .

Without more than a conclusory self-serving statement, DeVito’s defense of duress is insufficient to preclude summary judgment in lieu of complaint. . . ..

In his affidavit, DeVito suggests the parties to the Settlement Agreement had an understanding that [a nonparty] would be the party responsible for paying the settlement. However, this assertion is contradicted by the plain language of the Settlement Agreement, which expressly states “the parties represent and agree that no promise, inducement, or agreement other than as expressed herein has been made to them, and that this Agreement is fully integrated, and supersedes all prior negotiations, warranties, representations, promises, agreements, and understandings.”

Id., pp. 6-7 (internal citations omitted.)

Summary judgment was thus entered in the amount of $3,500,000.00, plus 16% interest as called for by the Settlement Agreement and Confession of Judgment, and the reasonable attorney’s’ fees and expenses they called for were severed and referred to a referee. Id., pp/ 8-9.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning summary judgment or attorneys’ fees.