Colton v. New York Hospital
| Decision Date | 24 June 1976 |
| Parties | Donne COLTON et al., Plaintiffs-Appellants-Respondents, v. The NEW YORK HOSPITAL et al., Defendants-Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
B. J. Goldmacher, Mineola, for plaintiffs-appellants-respondents.
G. van Setter, Scarsdale, for defendants-respondents-appellants.
Before STEVENS, P.J., and MARKEWICH, CAPOZZOLI, NUNEZ and LYNCH, JJ.
Order entered December 2, 1975 in the Supreme Court, New York County, unanimously modified on the law and in the exercise of discretion to direct a hearing and determination, preliminary to trial of the main issues, of the meaning and effect in law of the instrument dated January 24, 1972, designated, in part, as a 'Covenant Not To Sue Upon And Release Of All Claims,' and as so modified, the order is affirmed, without costs.
In this action for medical malpractice and loss of consortium, the parties cross-appeal from an order entered December 2, 1975 which denied defendants' motion for summary judgment dismissing the complaint and denied as well plaintiffs' motion to strike the third affirmative defense of release. Special Term decided that the question of the sufficiency of the release should be left for determination at trial.
Defendants urge that the instrument in question is a complete bar to the action, that public policy supports its enforcement, and that there are no factual issues regarding its execution to be adjudicated.
Plaintiffs assert that the instrument on its face does not discharge defendants from liability for negligence or medical malpractice and is not a bar to the present action. They further contend that, if it is construed to relieve defendants from their own negligence, the instrument is void as against public policy.
Without intending to determine the ultimate issues, but merely to set forth some guidelines to aid in that determination, we observe that in general terms a covenant not to sue is an agreement by one having a present right of action against another not to sue to enforce such right. A covenant not to sue is not a release since it is not a present abandonment of a right or claim, but merely an agreement not to enforce an existing cause of action. Such distinction although technical is nevertheless clear. Thus, the party possessing the right of action is not precluded thereby from thereafter bringing suit; however, he may be compelled to respond in damages for...
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