Berlow v. New York State Thruway Authority

• Decision Date: 15 December 1970
• Citation: 35 A.D.2d 356,316 N.Y.S.2d 238
• Parties: Joyce BERLOW, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent. Richard BERLOW, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 238

316 N.Y.S.2d 238

35 A.D.2d 356

Joyce BERLOW, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent.

Richard BERLOW, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY, Respondent.

Supreme Court, Appellate Division, Third Department.

Dec. 15, 1970.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Kenneth J. Connolly, Albany, of counsel) for respondent.

Robbins, Galton & Bondi, New York City (David S. Galton and Kenneth Dubroff, New York City, of counsel) for appellants.

Before HERLIHY, P.J., and REYNOLDS, GREENBLOTT, COOKE and SWEENEY, JJ.

HERLIHY, Presiding Justice.

These are appeals from orders of the Court of Claims, entered on December 9, 1969, which granted the State's motions to dismiss the claims.

The appellants were involved in a two car collision on the New York State Thruway and thereafter reached a settlement with the driver of the other car and signed a release absolving the other driver of all further claims as to the accident. The release did not contain a reservation of rights against the State and the claims involved herein were first instituted by the filing of notices of intention to file claims on or about October 10, 1967. Apparently after the notices of intention to file claims were filed, the appellants instituted an action against the owner and operator of the other vehicle in Supreme Court and the aforementioned release was given on June 15, 1968 for the purpose of settling that action with the insurance carrier of the defendant therein. On or about July 24, 1969 the actual claims or notices of claim were filed on behalf of the appellants pursuant to the original notices of intention. The action against the other driver and the actions against the State ate all predicated upon negligence which caused the two car collision and resultant injuries to the appellants.

The State moved to dismiss the claims upon the ground that the release given to the other driver was a release to its joint-tort-feasor and therefore, as a matter of law, the said release constituted a full recovery for all damages suffered by the appellants as a result of the accident and thus there are no remaining causes of action against the State (Milks v. McIver, 264 N.Y. 267, 190 N.E. 487). The trial court granted the motions and the appeal hereto raises a question of law as to the effect of the general release given in this case.

The Court of Appeals in its most recent case upon this subject (Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556) held that where such a release is given to a tort-feasor whose liability would extend for all personal injuries, the question of whether or not it also releases a subsequent tort-feasor whose negligence compounded the same personal injuries with the result that he would also be liable for the resultant conditions of the original injuries, presented issues of fact as to the intention of the injured persons to release the subsequent tort-feasor. It does not appear that the court in the Derby case was discarding the common law theory that a release of a tort-feasor in cases involving the concurrent negligence of joint tort-feasors would be as a matter of law a release of all joint tort-feasors (cf. Lucio v. Curran, 2 N.Y.2d 157, 157 N.Y.S.2d 948, 139 N.E.2d 133; Plath v. Justus, 33 A.D.2d 833, 306 N.Y.S.2d 80. However, a comparison of the Derby and the Milks cases leaves no doubt that there has been a liberalization insofar as the strictness of the common law rule is concerned.

In addition to calling our attention to the fact that the courts have at least to some extent ameliorated the strictness of the common law rules as to releases given to one of several joint tort-feasors (Derby v. Prewitt, Supra; Lucio v. Curran, Supra; Plath v. Justus, Supra) the appellants rely upon the express provisions of article 15 of the General Obligations Law.

Title #1 of this article is derived from sections 231, et seq., of the former Debtor and Creditor Law which was repealed effective September 27, 1964. Section 15--101 (all statutory references hereafter are to the General Obligations Law unless otherwise indicated) defines an obligation as including a liability in tort and expressly defines an obligee as including 'a person having a right based on a tort.' Upon its face, the definition would not require that the amount of the obligation be liquidated or reduced to judgment in order to be an obligee (cf. Rector, etc., St. James Church v. City of New York, 261 App.Div. 614, 617, 26 N.Y.S.2d 762; Bossong v. Muhleman, 254 App.Div. 738, 3 N.Y.S.2d 992; Warner v. Brill, 195 App.Div. 64, 185 N.Y.S. 586). Section 15--102 provides that a judgment against a joint and/or several obligors does not discharge a co-obligor who is not a party to the proceeding. Section 15--103 provides that the amount received by the obligee from one of joint and/or several obligors is generally to be credited on the obligations of all co-obligors. Section 15--104 relates to the release or discharge of a joint and/or several co-obligors and provides in the absence of an express written reservation of rights against the co-obligors, such release or discharge 'shall discharge co-obligors only to the extent provided in Section 15--105.' Section 15--105 provides for the extent to which the satisfaction of a co-obligor's obligation will satisfy the entire obligation of the co-obligors jointly. The remaining sections of Title 1 have no applicability to the instant facts.

The Court of Appeals has apparently never passed upon the precise meaning of Title 1 of the General Obligations Law or the prior same provisions of the Debtor and Creditor Law as determining the legal effect of a general release or discharge given to one of several and/or joint tort-feasors. (Cf. McNamara v. Eastman Kodak Co., 232 N.Y. 18, 35, 36, 133 N.E. 113, 119 decided prior to the inclusion of joint tort-feasors as obligors.) The Second Department has apparently limited the effect of the statutory provisions to those cases where the damages arising out of the joint tort are liquidated or there is a reservation of rights (Rector, etc., St. James Church v. City of New York, Supra; cf. Bossong v. Muhleman, Supra).

As discussed hereinabove the statutory provisions are not limited merely to situations involving a liquidated amount of damages. In the case of Bundt v. Embro, 48 Misc.2d 802, 265 N.Y.S.2d 872, mod. 27 A.D.2d 931, 278 N.Y.S.2d 770, affd. 21 N.Y.2d 1032, 291 N.Y.S.2d 12, 238 N.E.2d 502 the Court of Appeals affirmed without opinion a determination That the satisfaction of a judgment showing 'a satisfaction of damages' obtained separately against one of several joint tortfeasors for damages resulting from the concurrent negligence of the several joint tort-feasors bars a separate action against the remaining joint tort-feasors for the injuries resulting from the concurrent negligence.

It does not appear that the statutory provisions herein under consideration would permit an obligee to commence further proceedings where his damages have been reduced to a liquidated sum by judgment and the judgment has been entirely satisfied. (See § 15--103.) (See Bundt v. Embro, Supra.)

In the present case there is no showing that the amount of the damages suffered by the appellants has ever been reduced to a liquidated sum by the securing of a judgment. If in fact the appellants had agreed with the State's joint tort-feasor that the amount being paid for the release of said joint tort-feasor represented the full extent of their damages, the payment of such sum to the appellants would mean that the general obligation had been satisfied in full and that the appellants would have no cause of action as against the State or any other concurrent joint tort-feasor. (See § 15--103.) (See Derby v. Prewitt, Supra.)

In view of the provisions of the General Obligations Law as to the effect of a release, the motion to dissmiss upon the ground that the general release also released the State should have been denied; and the question of fact as to whether or not the payment by the joint tort-feasor and the concurrent release represented a payment of All damages and a satisfaction in full for the results of the concurrent negligence remains open.

The orders appealed from should be reversed, on the law and the facts, and the motions denied, with costs.

Orders reversed, on the law and the facts, and motions denied, with costs.

COOKE and SWEENEY, JJ., concur.

GREENBLOTT, J., concurs in a separate opinion.

REYNOLDS, J., dissents and votes to affirm in an opinion.

GREENBLOTT, Justice (concurring).

I concur with the majority in reasoning and result. However, I urge as a further ground for reversal, that the antiquated rule that a general release to one tort-feasor without reservation creates a bar to an action for damages against another tort-feasor, arising from the same injury, be abolished in this State. We should not blindly follow an archaic rule which no longer has any basis in fact or law. As Oliver Wendell Holmes said:

'It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.' (Path of Law, 10...