Jordan v. Westhill Central School Dist.

• Decision Date: 26 October 1973
• Citation: 348 N.Y.S.2d 620,42 A.D.2d 1043
• Parties: Barbara L. JORDAN and Edith Barry, Respondents, v. WESTHILL CENTRAL SCHOOL DISTRICT and Edward J. Shanahan, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 620

348 N.Y.S.2d 620

42 A.D.2d 1043

Barbara L. JORDAN and Edith Barry, Respondents, v. WESTHILL CENTRAL SCHOOL DISTRICT and Edward J. Shanahan, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Oct. 26, 1973.

Oot, Greene, Setright & Moore, Jerrold O'Brien, Syracuse, for appellants.

Carl W. Dengel, Syracuse, for respondents.

Before MARSH, J.P., and WITMER, MOULE, CARDAMONE and SIMONS, JJ.

MEMORANDUM:

Respondents were passengers in an automobile operated by one Jim McDonald when it collided in a rear-end collision with a school bus owned by appellant Westhill Central School District and operated by District employee, appellant, Edward J. Shanahan. A notice of claim was properly and timely served upon the School District but the summons and complaint were not served upon the proper official of the School District. Notwithstanding this defect in service we conclude that the action was validly commenced within the statutory period of one year and ninety days (General Municipal Law, Sec. 50i, subd. 1, para. (c)) by proper service of the summons and complaint upon the driver Shanahan, since 'timely service upon any one of two or more defendants, who are 'united in interest' as to a claim, permanently deprives all codefendants of the defense of the statute of limitations' (Zeitler v. City of Rochester, 32 A.D.2d 728, 302 N.Y.S.2d 207; CPLR 203(b), par. (6)). Appellants are nevertheless entitled to summary judgment dismissing the complaint, since in 1971 prior to the commencement of their respective actions against appellants, respondents executed releases of Jim McDonald without reserving any right against appellants. Although the Law has since been changed by statute (General Obligations Law, Sec. 15--108), the rule applicable at the time the releases were given was that a release of one tortfeasor without a reservation of rights against joint tortfeasors is a release of the joint tortfeasors as well (see, Berlow v. New York State Thruway Authority, 29 N.Y.2d 949, 329 N.Y.S.2d 579, 280 N.E.2d 366; Malvica v. Blumenfeld, 28 N.Y.2d 851, 322 N.Y.S.2d 249, 271 N.E.2d 227; Milks v. McIver, 264 N.Y. 267, 190 N.E. 487). Respondent urges that the statute altering this common law rule be given retrospective application. The general rule is that 'statutes 'are to be construed as prospective only, unless a clear expression of intent to the contrary is found" (Matter of Mulligan v. Murphy, 14 N.Y.2d 223, 226, 250 N.Y.S.2d 412, 415; Matter of...