Krichmar v. Krichmar

• Citation: 48 A.D.2d 515,370 N.Y.S.2d 133
• Parties: Craig KRICHMAR, etc., Respondent, v. Joseph KRICHMAR et al., Appellants.
• Decision Date: 07 July 1975
• Court: New York Supreme Court — Appellate Division

Page 133

370 N.Y.S.2d 133

48 A.D.2d 515

Craig KRICHMAR, etc., Respondent, v. Joseph KRICHMAR et al., Appellants.

Supreme Court, Appellate Division, Second Department.

July 7, 1975.

J. Robert Morris, New York City (Joseph D. Ahearn, New York City, of counsel), for appellants.

Finley, Kumble, Heine, Underberg & Grutman, New York City (Alan M. Gelb, Jewel H. Bjork and Wallace Gossett, New York City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and COHALAN, BRENNAN, MUNDER and SHAPIRO, JJ.

SHAPIRO, Justice.

The question for decision is whether under the circumstances of this case the infant plaintiff can sue his parents, the defendants, to recover damages for personal injuries sustained by him through their alleged negligence in the operation of an automobile in which he was a passenger, after having settled with, and given a general release to, the owner and operator of the other offending vehicle, a truck. We affirm the order of the Special Term which, in effect, held that he could.

THE FACTS AND PRIOR PROCEEDINGS.

On the afternoon of October 27, 1966, Craig Krichmar, the infant plaintiff, was a passenger in an automobile owned by his father, Joseph Krichmar, and driven by his mother, Rita Krichmar, when it collided with a dump truck owned by Anthony Piazza and driven by Anthony Passafuime. As a result of the accident, Craig and his mother were both injured and hospitalized. In August, 1967 the father, individually and as natural guardian of his son Craig, joined by his mother Rita, sued Piazza and Passafuime in negligence. Craig's claim was settled for $40,000 with the approval of the court. Justice Fitzpatrick's order of May 16, 1968, approving the settlement of the infant's claim, provided in part 'Ordered, that Joseph Krichmar, as father and natural guardian of Craig Krichmar, infant plaintiff, be and he hereby is authorized to enter into and accept a compromise of the claims herein, the claim for loss of services on behalf of Joseph Krichmar having been waived, upon compliance with the following terms of this order, to wit: that the defendant pay the sum of Forty Thousand ($40,000.) dollars in full settlement of the claims of the infant plaintiff and the father and natural guardian herein'.

In connection with the settlement, and although not specifically required by the order of compromise, a general release, dated May 16, 1968, was given to the defendants Piazza and Passafuime. Thereafter, in March, 1969, the Court of Appeals handed down its decision in Gelbman v. Gelbman 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192. ¹ By notice of motion dated June 11, 1970, the plaintiffs in the original action, Craig Krichmar, the infant, by his father and natural guardian Joseph Krichmar, and Rita Krichmar and Joseph Krichmar, individually, applied to Justice Fitzpatrick to reform and resettle the earlier order of compromise. On August 26, 1970 Justice Fitzpatrick modified the order of compromise of May 16, 1968 to state that the 1968 settlement and compromise 'is without prejudice to any right of the infant plaintiff Craig Krichmar, to seek recovery against any other person or persons, other than the defendants named in this action (Piazza and Passafuime), who may be liable to him for the injuries sustained by him in the accident of October 27, 1966.' ²

On July 11, 1972, the Special Term appointed the infant plaintiff's grandmother, Rose Krichmar, as his guardian ad litem 'for the purpose of instituting and prosecuting an action on behalf of the said infant, against Joseph Krichmar and Rita Krichmar', his parents. This action against them was commenced on September 21, 1972. Issue was joined by service of the defendants' answer on December 14, 1972. The answer contained general denials and affirmative defenses of Statute of Limitations and general release, plus a partial defense in mitigation of damages by payment by the defendants' insurer of $2,000 for the plaintiff's hospital and medical expenses.

By notice of motion dated September 5, 1973, renewed on February 12, 1974, the defendants moved for leave to serve an amended answer to reflect that the figure paid the infant plaintiff in settlement of the prior action was $40,000 rather than $2,000, and to assert two partial defenses in mitigation of damages, one for $40,000, the sum paid by Piazza and Passafuime, in exchange for the general release, and the other for the $2,000 paid by the parents' insurer for the medical expenses incurred by the parents on behalf of the infant plaintiff.

The plaintiff cross-moved on March 8, 1974 for an order dismissing the affirmative defenses as without merit.

THE ORDER APPEALED FROM AND THE OPINION OF SPECIAL TERM.

The Special Term granted the plaintiff's cross motion to strike the defenses of Statute of Limitations and general release and granted the defendants' motion to allow them to plead the payments of $40,000 and $2,000 in mitigation of damages. In its opinion, the Special Term declared the defense of Statute of Limitations to be insufficient since CPLR 208 permits an action on behalf of an infant to be commenced at any time during the infant's minority or during a three-year period following his 21st birthday. We agree with that disposition.

In rejecting the defense of general release, the Special Term declared that the rule that a general release without reservation applied to all tort-feasors liable for the same injury (Kainz v. Goldsmith, 231 App.Div. 171, 246 N.Y.S. 582) could not have been intended to release the defendant parents because, in 1968 when the release was delivered, their infant son had no cognizable cause of action against them.

THE LAW.

Prior to the adoption of section 15--108 of the General Obligations Law, ³ it was unquestionable that a 'general relea to one tort-feasor made without reservation creates a bar to an action for damages against another tort-feasor, arising from the same injury' (Milks v. McIver, 264 N.Y. 267, 269, 190 N.E. 487, 488). However, 'although the effect of a general release, in the absence of fraud or mutual mistake, cannot be limited or curtailed (see Lucio v. Curran, 2 N.E.2d 157, 161, 157 N.Y.S.2d 948, 951, 139 N.E.2d 133, 135; Kirchner v. New Home Sewing Mach. Co., 135 N.Y. 182, 188, 31 N.E. 1104, 1106), its meaning and coverage necessarily depend, as in the case of contracts generally, upon the controversy being settled And upon the purpose for which the release was actually given. Certainly a release may not be read to cover matters which the parties did not desire or intend to dispose of' (Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 509 (emphasis supplied)).

Here, where the governing case law at the time the release was signed by the infant plaintiff's natural guardian precluded any recovery against his parents, a fact which was known to the court which approved the settlement and which presumably was known to his parents' counsel and insurer, it would seem obvious that neither the parents (protected by liability insurance) nor the court desired or intended to dispose of any then nonenforcible claim by the infant against his mother, the driver of the vehicle in which he was riding, or against his father, the owner of that vehicle.

In Metropolitan Dry Cleaning Mach. Co. v. Hirsch, 38 A.D.2d 558, 559, 328 N.Y.S.2d 349, 352, this court said:

'The principle underlying the rule of Milks v. McIver, 264 N.Y. 267, 190 N.E. 487, Supra, that a release of one joint tortfeasor releases all, absent a reservation to the contrary, is founded on the equitable notion that the law will not permit a double recovery.'

Here, a double recovery is impossible, since, in order to recover from the instant defendants, his parents, the infant plaintiff must establish damages in excess of the $40,000 paid to him by the other joint tort-feasors. Thus, there is here absent the danger that led this court in Metropolitan Dry Cleaning Mach. (supra) to say that it would 'not permit a plaintiff to indulge in 'the niceties of legal theory' to avoid the effect of a general release and obtain a second recovery' (Supra, p. 560, 328 N.Y.S.2d p. 352). Since the defendants will be credited with what the plaintiff has already received in mitigation of damages, and as the $40,000 heretofore paid will effectually bar a recovery in this action if the infant plaintiff's damages are equal to or less than that sum, there is no danger that he may 'obtain a second recovery'.

The appellants contend, however, that the release given to the other tort-feasors relieves them of any liability because Gelbman 'did not create any new liability' on their part, since the court there said:

'By abolishing the defense of intrafamily tort immunity for non-willful torts, we are not creating liability where none previously existed. Rather, we are permitting recovery, previously denied, after the liability has been established. We, therefore, conclude that the present decision should be applied retrospectively to matters which have not gone to final judgment' (Gelbman v. Gelbman, 23 N.Y.2d 434, 439, 294 N.Y.S.2d 529, 532, 245 N.E.2d 192, 194, Supra.)

The appellants misconstrue the meaning of that quotation as applied to the facts here. Read in the context of the record before us, that language stands for the propositions (1) that thereafter recovery was to be permitted for intrafamilial tort, but, as in any other suit for tort injury, only where the injured family member could establish a case of negligence and consequent liability on the part of the other family member and (2) that the elimination of the defense of intrafamily tort immunity for nonwillful torts in no way altered or lessened the burden on the plaintiff to prove that the negligence of the family member tort-feasor was a cause of the injury. The language was also clearly intended to stress that where the plaintiff could establish this, even in cases where the tort was committed prior to the court's...