Pollicina v. Misericordia Hosp. Medical Center

Decision Date09 February 1993
PartiesGerald Anthony POLLICINA, as Administrator of the Goods, Chattels and Credits of Barbara Ann Pollicina, Deceased, Plaintiff-Appellant, v. MISERICORDIA HOSPITAL MEDICAL CENTER, et al., Defendants, and Hospital of the Albert Einstein College of Medicine, Defendant-Respondent.
CourtNew York Supreme Court — Appellate Division

Fred R. Profeta, Jr., New York City, of counsel (Profeta & Eisenstein, attorneys), for plaintiff-appellant.

Nancy Ledy Gurren, New York City, of counsel (Bower & Gardner, attorneys), for defendant-respondent.

Before CARRO, J.P., and MILONAS, ELLERIN, WALLACH and KUPFERMAN, JJ.

MILONAS, Justice.

Plaintiff appeals from a resettled judgment which, following a jury verdict in favor of plaintiff, reduced the amount payable by defendant Hospital of the Albert Einstein College of Medicine to zero based upon set-offs pursuant to General Obligations Law 15-108. In that regard, in this medical malpractice and wrongful death action, the jury determined that plaintiff was entitled to $5 million, apportioned 25 percent against Einstein, 25 percent against defendants Peter George Mancuso and Stephen F. Allen and 50 percent against defendant Frank M. Sandor. However, Mancuso and Allen had settled for $1.1 million prior to the verdict, while Sandor had settled for $650,000. Although defendant Misericordia Hospital Medical Center had settled for $50,000, its negligence was never submitted to the jury since the trial court concluded there was no liability as a matter of law. The court, upon motion, reduced the amount of the verdict to $2.2 million and then set aside the finding of liability against Einstein. On appeal, this court reinstate the finding of liability against Einstein and otherwise affirmed (158 A.D.2d 194, 557 N.Y.S.2d 902).

Defendant Einstein moved to resettle the judgment, urging that the apportionment of damages against it should be zero as a result of the set-offs from the settlements with the other defendants. Thus, Einstein contended, the $2.2 million verdict should be lessened by the $1.1 million from the Mancuso/Allen settlement and by another $1.1 million attributable to the finding that Sandor was 50 percent liable. The court, deeming this argument persuasive, decided that Einstein's share of the verdict was zero. However, the issue of how set-offs are to be applied under General Obligations Law 15-108 was recently considered by this court in Williams v. Niske, 181 A.D.2d 307, 586 N.Y.S.2d 942, lv. granted, 186 A.D.2d 1099, 593 N.Y.S.2d 391. As the court noted therein, "[w]e do not think that [a] result, virtually exonerating the nonsettling defendant notwithstanding its substantial share of fault, and, at the same time, markedly reducing the recovery to which the ... plaintiff established an entitlement, is required either by the language or underlying intendment of the aforecited statute" (at 309, 586 N.Y.S.2d 942).

In discussing section 15-108 of the General Obligations Law, the court explained in Williams v. Niske, supra, that this law was amended in 1974 in order to encourage settlements as a consequence of Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. According to the court (181 A.D.2d at 310, 586 N.Y.S.2d 942):

Subdivision (a) of the amended statute sought to compensate the nonsettling defendant for the loss of the right of contribution by providing that the verdict against the nonsettling defendant would be reduced "to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest." Plainly, the credit provided to the nonsettling defendant by subdivision (a) has no defensible purpose beyond that of assuring that the nonsettlor will not be accountable for more than his equitable share of the verdict; given the overriding statutory objective of encouraging settlement, there can be no conceivable justification for applying subdivision (a) so as to reward a tortfeasor's insistence that the claim against him be reduced....

Consequently, the court in Williams v. Niske, supra, stated that its method of reduction involved reducing "the verdict by the settlement amounts agreed upon prior to any apportionment of fault first, and only thereafter further reduc...

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