Dury v. Dunadee

• Decision Date: 21 May 1976
• Citation: 52 A.D.2d 206,383 N.Y.S.2d 748
• Parties: Dorothy L. DURY, Appellant, v. Frank DUNADEE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 748

383 N.Y.S.2d 748

52 A.D.2d 206

Dorothy L. DURY, Appellant, v. Frank DUNADEE, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 21, 1976.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for appellant (Robert Small, Syracuse, of counsel).

Louis S. Petrone, Utica, for respondent (Marcus Curry, Utica, of counsel).

Before MARSH, P.J., and CARDAMONE, SIMONS, MAHONEY and GOLDMAN, JJ.

CARDAMONE, Justice:

The sole issue on this appeal is whether Dorothy Dury's (plaintiff's) prior general release of the defendant (Frank Dunadee) bars her present action against this defendant for contribution under CPLR 1401 (Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288).

A two-car accident occurred in Mohawk, New York on February 14, 1970. Dorothy Dury, owner and operator of one car, was in collision with Frank Dunadee, owner and operator of the other vehicle. Mildred Dunadee, a passenger in her husband's auto, brought an action against Dury for her injuries. Dorothy Dury, in turn, commenced an action against Frank Dunadee for her injuries. On March 22, 1972 Dole v. Dow Chemical Co., was decided. About six months later, on October 9, 1972 Mrs. Dury settled her action against Frank Dunadee and upon receipt of $1600 signed and delivered a general release to him. It is this general release which Dunadee now claims is a bar to plaintiff Dury's claim for contribution from him. Dury's claim against Mr. Dunadee arose because Mildred Dunadee obtained a judgment in her negligence action against Dorothy Dury for $3673.56 which was affirmed by this Court (45 A.D.2d 821, 358 N.Y.S.2d 348) and paid to Mrs. Dunadee in July, 1974. After paying Mrs. Dunadee, Dorothy Dury commenced an action directly against Frank Dunadee, as defendant, for contribution apportioning Mildred Dunadee's judgment. Plaintiff Dury alleges in her complaint, served on defendant Frank Dunadee on July 29, 1974, that the 'affirmative and primary negligence' of the defendant (Mr. Dunadee) in failing to stop at a stop sign when crossing Main Street and failing to keep a proper lookout was the 'major factor' in causing his wife's injuries. Thus, plaintiff seeks judgment against Mr. Dunadee for his proportionate fault in causing Mrs. Dunadee's injuries.

Mr. Dunadee's answer to plaintiff Dury's complaint asserted the affirmative defense of the release executed and delivered to him by Mrs. Dury, dated October 9, 1972 upon which release he moved for summary judgment. The release, on a printed form, recited consideration of $1600 paid by Frank Dunadee in exchange for Mrs. Dury's promise to release and discharge Mr. Dunadee 'from all, and all manner of action and actions, etc.'. This printed promise was augmented by the following typewritten promise 'And especially from any and all liability for personal injuries and medical expenses and hospital bills directly or indirectly resulting therefrom by reason of an automobile accident that occurred on or about February 14, 1970 at the intersection of Richfield Street and East Main Street in the Village of Mohawk, N.Y. in which an automobile owned and operated by the said Dorothy L. Dury came in collision with an automobile owned and operated by the said Frank Dunadee, and the said Dorothy L. Dury was injured and her motor vehicle was substantially damaged. It is understood that this release also covers and releases the $100.00 deductible portion of the property damage claim resulting from said accident, and it is further understood that the remaining portion of the subrogated property damage claim is owned by and reserved by the collision carrier and stands unimpaired by this release.'

In opposition to Mr. Dunadee's motion for summary judgment, Mrs. Dury's counsel alleged that the above release was 'directly related' to Dury's prior action for her own personal injuries which had been instituted and settled in 1972. He also noted that the release expressly referred only to 'any matter or thing from the beginning of the world up to the Date of these presents'. Thus, because the present claim for contribution was not commenced until 1974, two years after the date of the release of October, 1972 plaintiff claims that the release did not discharge the contribution claim but only 'the personal injury claim of Dorothy Dury'.

Special Term denied plaintiff's motion for summary judgment and granted defendant's motion, concluding that the defendant was not estopped from raising the defense of release and that the release discharged plaintiff's claim for contribution, citing Vassar v. Jackson, 72 Misc.2d 652, 340 N.Y.S.2d 151, affd. 42 A.D.2d 693, 344 N.Y.S.2d 1020. We cannot agree.

Releases are contracts whose interpretation is governed by principles of contract law (Mangini v. McClurg, 24 N.Y.2d...