
    David Beattie, Appellant, v Willis Corroon Corporation of New York, Inc., Respondent.
    [629 NYS2d 204]
   Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 19, 1994, which granted both defendant’s motion to amend its answer to include the defense of release and defendant’s motion to dismiss the complaint based upon this release, unanimously affirmed, without costs.

In 1989, defendant commenced an action against plaintiff in which plaintiff asserted a counterclaim seeking payment of commission income. On May 15, 1989, the parties entered into a settlement agreement whereby their claims were withdrawn with prejudice. Notwithstanding that the settlement agreement specified that the parties would exchange mutual releases and file a stipulation providing for the immediate dismissal with prejudice, they failed to do so. The IAS Court properly determined that despite such failure plaintiff’s current claims for payment of commission income were waived as a result of settlement of the prior action (see, Cortino v London Terrace Gardens, 170 AD2d 305, lv denied 78 NY2d 853) . Plaintiffs argument that his current claims for fraud and misrepresentation are not barred was not raised in the IAS Court and we decline to reach it. In any event, since plaintiffs fraud claim is based upon the same facts as his breach of contract claim, the settlement agreement bars these claims as well. In addition, defendant did not waive the defense of release and the court properly granted it leave to amend its answer (CPLR 3025 [b]). Concur—Kupferman, J. P., Ross, Asch, Nardelli and Tom, JJ.  