Clear Final Release Bars Contractor’s Retainage Claim; Bald Forgery Allegations and Unilateral Mistake Do Not Create Triable Issues
Introduction
In Benowski v Track Dr., LLC (2026 NY Slip Op 04466 [3d Dept July 16, 2026]), the Appellate Division, Third Department
affirmed summary judgment dismissing an electrical contractor’s payment suit because a later, written “final release” unambiguously
stated that a specified payment was the “entire unpaid balance” and would satisfy “any and all liens, claims, and demands” connected
with the project.
The dispute arose from a 2019 commercial renovation project in Broome County owned by Track Drive, LLC and PSM Limited Partnership
(together with other defendants). Plaintiff John Benowski, doing business as Sprague Electric Co., claimed he was owed
$140,738.47—principally a 10% retainage/retainer component plus additional sums—despite having signed a January 7, 2020 release and
receiving the exact payment stated in that release.
Key issues included: (i) whether the January 2020 release barred plaintiff’s later monetary claims; (ii) whether plaintiff raised a
triable issue that he did not sign the release (or that it was forged); (iii) whether the release could be set aside as not “fairly
and knowingly made”; and (iv) whether earlier payment applications and a December 2019 partial release could be used to narrow the
scope of the final release.
Summary of the Opinion
The Third Department held that defendants met their prima facie burden on summary judgment by producing evidence of a signed, broad,
unambiguous release; proof plaintiff was paid the stated amount; deposition testimony that plaintiff signed the release; and a
forensic document examiner’s affidavit supporting authenticity. The burden then shifted to plaintiff to show fraud, duress, or other
grounds to void the release or otherwise raise a triable issue.
Plaintiff failed to do so. His argument that the document released only liens (not claims for payment) was contradicted by the
release’s plain language. His challenge to the signature was insufficient because he did not clearly deny signing and offered no
evidence beyond conjecture. His “fairly and knowingly made” argument amounted to a unilateral misunderstanding about scope, which is
not a basis to set aside an unambiguous release. Extrinsic evidence (including a prior partial release and payment applications) was
not considered to vary clear terms, and in any event the final release superseded earlier releases on the same subject.
Analysis
Precedents Cited
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Centro Empresarial Cempresa S.A. v AmÃrica MÃvil, S.A.B. de C.V., 17 NY3d 269 (2011):
The court relied on this foundational rule that a valid release is a “complete bar” to claims within its scope and that signing a
clear, unambiguous release is a binding “jural act.” It also supplied the burden-shifting framework: defendants must show a signed
release; then plaintiff must show fraud, duress, or other voiding facts.
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Salewski v Music, 150 AD3d 1353 (3d Dept 2017):
Cited to reinforce that clear and unambiguous releases are enforced as written.
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Ford v Phillips, 121 AD3d 1232 (3d Dept 2014):
Cited for the principle that a release, like any contract, may be set aside for fraud or mutual mistake, but not for an
insufficiently supported challenge; also cited later for the proposition that unilateral mistake is not enough.
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Cames v Craig, 181 AD3d 851 (2d Dept 2020):
Cited for the same post-release burden on the party seeking to void it.
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M.M. v Church of Our Lady of the Annunciation, 203 AD3d 1277 (3d Dept 2022), lv denied 38 NY3d 911 (2022):
Used both to validate summary judgment enforcement of a broad release and to support the holding that unilateral mistake about a
release’s scope is insufficient to set it aside.
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Ivasyuk v Raglan, 197 AD3d 635 (2d Dept 2021):
Cited as additional authority supporting enforcement of releases on summary judgment where the record demonstrates execution and
unambiguous scope.
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Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381 (2004):
Central to the signature-dispute analysis: “Something more than a bald assertion of forgery is required” to contest authenticity.
The Third Department applied this to plaintiff’s inability to recall signing and speculative suggestion someone “could” have copied
a signature.
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Community Bank, N.A. v Sharkey, 182 AD3d 681 (3d Dept 2020);
Ginty v American Funds Serv. Co., 121 AD3d 1452 (3d Dept 2014);
Wood v Converse, 263 AD2d 860 (3d Dept 1999):
These cases reinforced the Banco Popular rule in the Third Department context—unsupported, conclusory forgery claims do not
create triable issues.
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Rubycz-Boyer v Mondragon, 15 AD3d 811 (3d Dept 2005), lv denied 5 NY3d 703 (2005);
Stevens v Town of Chenango [Forks], 167 AD3d 1105 (3d Dept 2018):
Cited for the contract-interpretation principle that courts do not consider extrinsic evidence to determine intent when the writing
is clear and unambiguous.
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Pope Contr., Inc. v New York City Hous. Auth., 214 AD3d 519 (1st Dept 2023):
Cited for the general rule that a later agreement on the same subject matter supersedes an earlier one—supporting the conclusion
that the January 2020 final release displaced the December 2019 partial release.
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Johnson v Lebanese Am. Univ., 84 AD3d 427 (1st Dept 2011);
Mangini v McClurg, 24 NY2d 556 (1969);
Wei Qiang Huang v Llerena-Salazar, 222 AD3d 1033 (2d Dept 2023):
These authorities define the equitable doctrine allowing releases to be set aside even short of actual fraud where overreaching,
lack of deliberation time, or unfair circumstances make enforcement inequitable.
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Pastrana-Ortiz v Wemple, 239 AD3d 1290 (4th Dept 2025);
Pacheco v 32-42 55th St. Realty, LLC, 139 AD3d 833 (2d Dept 2016);
Powel v Adler, 128 AD3d 1039 (2d Dept 2015):
Cited as contrasting personal injury contexts where courts have found triable issues about whether releases were fairly and
knowingly made.
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Matter of Walter, 180 AD3d 1201 (3d Dept 2020):
Cited alongside M.M. and Ford to reinforce that unilateral mistake does not justify setting aside a release.
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Trepeta v Mobiquity Tech., Inc., 241 AD3d 967 (2d Dept 2025);
Rivera v Wyckoff Hgts. Med. Ctr., 113 AD3d 667 (2d Dept 2014), lv denied 24 NY3d 910 (2014):
Cited to support the ultimate conclusion that plaintiff’s proof did not raise a triable issue on the “fairly and knowingly made”
standard.
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Footnote 2 authorities—Webb v United Health Servs., Inc., 221 AD3d 1315 (3d Dept 2023) and
Globe Trade Capital LLC v Hoey, 199 AD3d 764 (2d Dept 2021)—were invoked to discount plaintiff’s reliance on a prior
affidavit denial (from motion-to-dismiss practice) as insufficient, even if considered, to create a genuine signature dispute on
summary judgment.
Legal Reasoning
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Unambiguous release language controlled.
The court treated the January 2020 release as dispositive because it stated (i) $233,797.23 was the “entire unpaid balance,” and
(ii) payment would “fully satisfy any and all liens, claims, and demands” in connection with the project. That text foreclosed the
plaintiff’s attempt to recast the release as lien-only.
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Defendants met the prima facie summary judgment showing.
The record included: deposition testimony from an owner describing the January 7 meeting and plaintiff’s agreement to forgo the 10%
retainage; corroborating testimony from the witness to the signing; the release bearing plaintiff’s signature and printed name; the
same-day check for $233,797.23; and a forensic document examiner’s affidavit that the signature was “wet-inked” (not a copied
signature). This satisfied the initial burden under the release-enforcement framework.
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Plaintiff did not raise a triable issue on authenticity.
Plaintiff’s deposition testimony—he did not recall signing, it “could be” his signature, and he “can’t say” someone did not copy
it—fell squarely within Banco Popular N. Am. v Victory Taxi Mgt.’s rule that more than a bald assertion of forgery is
required. The court emphasized that plaintiff did not unequivocally deny signing and offered no admissible proof sufficient to
counter defendants’ evidentiary showing.
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Extrinsic evidence could not narrow a clear release.
Plaintiff’s reliance on earlier payment applications and the December 2019 partial release (which included a retainage figure) was
rejected because, under Rubycz-Boyer v Mondragon and Stevens v Town of Chenango [Forks], extrinsic evidence is not
used to interpret intent where contract language is unambiguous. Additionally, the January 2020 final release superseded the
earlier partial release under the principle referenced in Pope Contr., Inc. v New York City Hous. Auth..
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“Not fairly and knowingly made” requires more than a unilateral misunderstanding.
The court acknowledged the equitable doctrine from Mangini v McClurg and Johnson v Lebanese Am. Univ., but
distinguished cases where injuries, time pressure, overreaching, or unknown discrimination claims raised fairness concerns. Here,
the alleged problem was plaintiff’s asserted misunderstanding of scope—whether he was still owed the 10% retainage. The court
treated that as a unilateral mistake, which—per M.M. v Church of Our Lady of the Annunciation, Matter of Walter,
and Ford v Phillips—is insufficient to set aside a release.
Impact
The decision strengthens predictable enforcement of end-of-project releases in commercial construction/payment disputes,
particularly where:
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the release expressly states a specific “entire unpaid balance” and includes expansive “any and all claims” language;
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the contractor later attempts to characterize the document as merely a lien waiver despite broader text;
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the contractor’s attack on authenticity rests on non-recollection or speculation rather than competent, admissible evidence; and
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the contractor argues unfairness based on misunderstanding rather than fraud, duress, mutual mistake, overreaching, or analogous
inequitable circumstances.
Practically, Benowski signals that New York courts will treat a clear “final release” as closing the door on later retainage
claims even where earlier billing documents referenced retainage—unless the contractor can produce concrete proof supporting a
recognized avoidance theory (e.g., fraud, duress, mutual mistake) or a genuine signature dispute under the standards articulated in
Banco Popular N. Am. v Victory Taxi Mgt..
Complex Concepts Simplified
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Release (as a “jural act”): A signed legal document where a party gives up (releases) claims. If its wording is
clear, courts generally enforce it as written.
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Summary judgment / “prima facie burden” / “triable issue of fact”: Summary judgment ends a case without trial when
evidence shows there is no real factual dispute requiring a jury/judge to decide. The movant first must make an initial showing
(prima facie). Then the opponent must produce admissible evidence creating a real dispute (triable issue).
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Extrinsic evidence: Evidence outside the written document (earlier drafts, invoices, conversations). If the writing
is unambiguous, courts generally do not use this to alter the document’s meaning.
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Unilateral vs. mutual mistake: Unilateral mistake is only one party being mistaken; mutual mistake is both parties
sharing the same mistaken assumption. The former typically does not void a clear release; the latter can, in appropriate cases.
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Retainage/retainer (construction context): A percentage withheld until completion to ensure performance; here, the
claimed 10% amount was treated as waived because the final release defined the “entire unpaid balance” without it.
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“Bald assertion of forgery”: A conclusory claim that a signature is forged, without supporting proof; New York law
requires more to create a factual dispute.
Conclusion
Benowski v Track Dr., LLC reinforces a straightforward but consequential rule in New York practice: a clear, unambiguous final
release—stating an “entire unpaid balance” and releasing “any and all” claims—will bar later contractor payment claims, including
retainage claims, absent competent evidence supporting a recognized basis to void the release. Non-recollection of signing, a
speculative suggestion of copying, and a unilateral misunderstanding of the release’s scope are not enough to survive summary
judgment.