Bonnot v. Fishman

• Decision Date: 24 May 1982
• Citation: 450 N.Y.S.2d 539,88 A.D.2d 650
• Parties: Betty BONNOT, Respondent; Frank Bonnot, Appellant, v. Harvey FISHMAN, Appellant-Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 539

450 N.Y.S.2d 539

88 A.D.2d 650

Betty BONNOT, Respondent Frank Bonnot, Appellant, v. Harvey FISHMAN, Appellant-Respondent, et al., Defendant.

Supreme Court, Appellate Division Second Department.

May 24, 1982.

Rivkin, Leff, Sherman & Radler, Garden City (Andrew J. Schatkin, Garden City, of counsel), for appellant-respondent.

Esau J. Mishkin, Mineola, for respondent and appellant.

Before LAZER, J. P., and GIBBONS, O'CONNOR and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In consolidated negligence actions to recover damages for personal injuries, etc., the cross appeals are from a judgment of the Supreme Court, Queens County, entered February 9, 1981, which, after a jury trial, was in favor of plaintiff Betty Bonnot in the principal amount of $193,000 and against defendant Fishman, and was in favor of Fishman and against plaintiff Frank Bonnot.

Judgment modified, on the law, by (1) reducing the principal sum awarded plaintiff Betty Bonnot to $148,000 and (2) deleting the second decretal paragraph thereof and substituting therefor a provision setting aside the verdict in favor of defendant Fishman and against plaintiff Frank Bonnot, severing the action as between said parties and granting a new trial as between them on Frank Bonnot's cause of action for loss of services. As so modified, judgment affirmed, without costs or disbursements, and case remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

Plaintiff Betty Bonnot alleged, in material part, that improper treatment by various defendants of a femur fracture she sustained in an automobile accident resulted in her pain and suffering, the need for corrective surgery and a permanent shortening of the leg and loss of knee flexion. Defendant Fishman did not assert a cross claim against defendant Peninsula Hospital (hereinafter hospital), which settled with the plaintiffs for $45,000 just before the trial began. After a jury trial, Betty Bonnot recovered a judgment against Dr. Fishman in the principal sum of $193,000. On appeal, plaintiffs contend Fishman failed to prove at trial what the hospital's equitable share of Betty Bonnot's damages would have been, and thus waived his right to have the jury verdict reduced by the amount of the settlement.

Section 15-108 (subd. ) of the General Obligations Law provides that when an alleged tort-feasor is released from an action, "it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the...