Pollicina v. Misericordia Hosp. Medical Center

• Citation: 82 N.Y.2d 332,624 N.E.2d 974,604 N.Y.S.2d 879
• Parties: , 624 N.E.2d 974 Gerald A. POLLICINA, as Administrator of the Estate of Barbara A. Pollicina, Deceased, Respondent, v. MISERICORDIA HOSPITAL MEDICAL CENTER et al., Defendants, and Hospital of the Albert Einstein College of Medicine, Appellant.
• Decision Date: 18 November 1993
• Court: New York Court of Appeals

Page 879

604 N.Y.S.2d 879

82 N.Y.2d 332, 624 N.E.2d 974

Gerald A. POLLICINA, as Administrator of the Estate of Barbara A. Pollicina, Deceased, Respondent, v. MISERICORDIA HOSPITAL MEDICAL CENTER et al., Defendants, and Hospital of the Albert Einstein College of Medicine, Appellant.

Court of Appeals of New York.

Nov. 18, 1993.

Bower & Gardner, New York City (Nancy Ledy Gurren and Judith A. Davidow, of counsel), for appellant.

Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., and Michael J. Orlofsky, of counsel), and Theodore H. Friedman, P.C., for respondent.

OPINION OF THE COURT

TITONE, Judge.

In this medical malpractice action against multiple defendants, plaintiff has recovered a judgment for wrongful death and has been awarded damages, as reduced by the trial court and affirmed by the Appellate Division, 187 A.D.2d 217, 593 N.Y.S.2d 512, against the only nonsettling defendant, Albert Einstein College of Medicine (Einstein). The primary issue in this case, as in the companion cases (Didner v. Keene Corp., 82 N.Y.2d 342, 604 N.Y.S.2d 884, 624 N.E.2d 979; Dudick v. Keene Corp., 82 N.Y.2d 821, 605 N.Y.S.2d 3, 625 N.E.2d 588 [both decided herewith], is the proper method for computing the setoff required by General Obligations Law § 15-108(a) where two or more defendants have settled with the plaintiff before entry of judgment. Unlike the companion cases, this appeal presents an additional question: whether the approval of the Surrogate's Court is necessary to render a settlement in a wrongful death action final and binding.

I.

Before the verdict was announced, two of the defendants, Drs. Mancuso and Allen, settled collectively for the sum of $1.1 million, and defendant Dr. Sandor settled for $650,000. Another defendant, Misericordia Hospital Medical Center (Misericordia), settled with plaintiff for $50,000. Only defendant Einstein's liability remained to be determined by the jury. The jury's apportionment of the fault in this case--a factual determination which the Appellate Division has affirmed (158 A.D.2d 194, 557 N.Y.S.2d 902)--was 25% ($550,000) against Einstein, 25% ($550,000) against defendants Dr. Mancuso and Dr. Allen, and 50% ($1,100,000) against defendant Dr. Sandor. Defendant Misericordia was determined to have no responsibility for plaintiff's decedent's injuries.

Since the jury's apportionment of fault differed from the amounts that the settling defendants had paid, a dispute has arisen regarding how the General Obligations Law § 15-108(a) setoff for settlements should be applied.

II.

Initially, we reject plaintiff's contention that General Obligations Law § 15-108(a) is not applicable because the settling defendants did not have formal executed releases in hand at the time judgment was entered. As we stated in Didner v. Keene Corp., supra, a settlement entered into or memorialized in open court that effectively and finally terminates the action against the settling defendants is sufficient to invoke the remedial provisions of the statute.

We also reject plaintiff's more substantive contention that General Obligations Law § 15-108(a) is not applicable because the settlements in question were not finalized until after the judgment was entered. This argument is predicated on the assumption that under EPTL 5-4.6 the approval of the Surrogate was required before the settlements would be final and binding. Relying on this central supposition, plaintiff then argues that Rock v. Reed-Prentice Div., 39 N.Y.2d 34, 40-41, 382 N.Y.S.2d 720, 346 N.E.2d 520, in which this Court held that General Obligations Law § 15-108(c) does not apply to postjudgment settlements (cf., Didner v. Keene Corp., supra; Lettiere v. Martin El. Co., 62 A.D.2d 810, 406 N.Y.S.2d 510, affd. 48 N.Y.2d 662, 421 N.Y.S.2d 879, 397 N.E.2d 390), precludes application of General Obligations Law § 15-108(a) to his settlements, because those settlements, although reached before judgment, did not receive the Surrogate's imprimatur of approval until more than four months after judgment was entered.

The suggestion that the Surrogate has a mandatory role to play in the settlement of wrongful death actions has no support in EPTL 5-4.6. As drafted both before and after its 1992 revisions (see, L.1992, ch. 595), that statute clearly and unequivocally confers the power of approval upon "the court in which [the] action for [wrongful death] * * * is pending," i.e., the Supreme Court. As it existed before 1992, EPTL 5-4.6(a) provided:

"Upon the application of an administrator appointed under 5-4.1 or a personal representative to the court in which an action for wrongful act, neglect or default causing the death of a decedent is pending, the court may, after inquiry into the merits of the action and the amount of damages proposed as a compromise[, approve or disapprove the compromise]" (emphasis supplied).

The current version is the same except for the addition of a proviso authorizing a "transfer [of] the action to the surrogate's court which issued the letters [of administration] for determination of the issues of allocation and distribution of proceeds and related matters" after a compromise has been approved ( § 5-4.6[a][1] [emphasis supplied].

The amendment was enacted to address a specific problem: the absence from the Supreme Court wrongful death action of certain parties, including the State Tax Commission and the individual distributees, who have an interest in the distribution of the lawsuit's proceeds (see, Turano, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 5-4.6, 1993 Pocket Part, at 87). To remedy this problem, the Legislature made express provision authorizing, but not requiring, the court in which the wrongful death action is pending to refer the case to the Surrogate for the limited purpose of administering the proceeds of an approved settlement (L.1992, ch. 595). ¹ There is nothing in the amendment that purports to alter the right and obligation of the Supreme Court to evaluate and resolve the fairness and reasonableness of the settlement, including the amount to be paid, the manner in which the payment obligation is amortized and the parties' arrangements for payment of costs and attorneys' fees. Indeed, as drafted both before and after the amendment, the statute provides that the Supreme Court's written approval constitutes "conclusive evidence of the adequacy of the compromise in any proceeding in the surrogate's court for the final settlement of the account of [the] administrator or personal representative" (EPTL 5-4.6[b]. It is difficult to imagine a clearer expression of the Legislature's intention to leave the power to approve settlements in the hands of the court in which the wrongful death action is pending, in this case the Supreme Court. ²

Moreover, even if there had been a contrary legislative intention to transfer authority to approve wrongful-death settlements to the Surrogate's Court, such an intention could not be implemented, since it would run directly afoul of the existing constitutional allocation of judicial powers. Article VI, § 7(a) of the State Constitution provides that the Supreme Court "shall have general original jurisdiction in law and equity." Further, "[i]f the legislature shall create new classes of actions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings" (id., § 7[b].

This means that, with two narrow exceptions, ³ the Supreme Court is competent to entertain all causes and to conduct all subsidiary proceedings necessary to determining those causes (see, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793, 225 N.E.2d 503), including any and all proceedings occurring in the course of a statutorily prescribed wrongful death action (see, Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288). While the Legislature may confer concurrent jurisdiction on other courts, it cannot oust the Supreme Court from jurisdiction or limit the scope of its authority in those actions (see, Kagen v. Kagen, 21 N.Y.2d 532, 289 N.Y.S.2d 195, 236 N.E.2d 475).

Although the Surrogate's Court is the primary forum for proceedings involving estates and intestacies, the Supreme Court's inviolate authority to hear and resolve all causes in law and equity unquestionably extends to such matters as well. Indeed, the specific question of the relationship between the power of Supreme Court and those of the Surrogate's Court has already been definitively addressed in Matter of Malloy, 278 N.Y. 429, 432, 17 N.E.2d 108), in which this Court stated:

"The Supreme Court is a court of general jurisdiction. It may take the account of a trustee, probate a will, and exercise jurisdiction in many other matters where the Surrogate's Court also has jurisdiction. The Legislature cannot by statute deprive it of one particle of its jurisdiction, derived from the Constitution (Art. VI), although it may grant concurrent jurisdiction to some other court, as it has done to the Surrogate's Court."

As the holding in Malloy makes clear, the Supreme Court has the authority to probate a will or distribute an intestate's assets in accordance with law. A fortiori, it has the inalienable power to approve settlements of the wrongful death actions that are commenced and prosecuted before it as well as the power to distribute the proceeds of those settlements, notwithstanding that the Legislature may authorize the Surrogate's Court to perform one or both of those judicial functions.

It is true, as one commentator has noted that the Surrogate's Court is the "preferred" forum for determining the proper distribution of the settlement proceeds because "unlike the trial court, all parties interested in the estate, e.g., creditors, distributees [and] the State Tax Commission, * * * are before the [Surrogate's] court and have an opportunity to be heard" (9A Rohan, NY Civ Prac p 5-4.6[1], at 5-947). However, the...