Kology v. Maplewood Homes, Inc.
| Decision Date | 25 January 1971 |
| Citation | 36 A.D.2d 538,318 N.Y.S.2d 566 |
| Parties | Peter KOLOGY et al., Appellants, v. MAPLEWOOD HOMES, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Alex A. Bohm, New York City, for appellants.
Helfenstein & Helfenstein, Brooklyn, for respondent; Julius H. Turetsky, New York City, of counsel.
Before RABIN, P.J., and SHAPIRO, CHRIST and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries sustained by the infant plaintiff, etc., plaintiffs appeal from an order of the Supreme Court, Suffolk County, entered April 10, 1969, which granted defendant's motion to dismiss the action on the ground of release.
Order reversed, with $10 costs and disbursements, and motion denied. Defendant's time to answer the complaint is extended until 20 days after entry of the order hereon.
Plaintiffs commenced a prior negligence action based on the accident here in question against a different defendant, Evergreen Homes, Inc. When that case was ready for trial it was settled for $1,000 with the aid of the trial court; and a stipulation of settlement was read into the record. One of the factors inducing the settlement was the representation that the defendant was not the owner of the real property on which the infant plaintiff was injured. Since that action included an infant's cause of action, a compromise order was issued by the court. The order authorized the infant's father and guardian to execute and deliver to Evergreen Homes, Inc. a conditional release reserving the infant's rights against Maplewood Homes, Inc., the record owner of the property.
The action at bar was subsequently commenced, against Maplewood Homes, Inc., which moved to dismiss the complaint on the ground that, as part of the settlement in the prior action, the parties had fully agreed that a release would be executed releasing Maplewood as well as Evergreen. Maplewood further contended that the acceptance of the conditional release by Evergreen was the result of an office error. The instant motion to dismiss was referred to the same Trial Judge who had aided in the settlement of the prior action and signed the order of compromise. The motion was granted and the complaint dismissed on the ground that it had been the understanding of the parties that plaintiffs, when they settled their action against Evergreen, were also settling their claim against Maplewood.
In our view it was error to modify the effectiveness of the compromise order in the prior action in the manner here attempted. The...
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