Mielcarek v. Knights

• Decision Date: 12 December 1975
• Parties: Theresa MIELCAREK, Respondent, v. Mary Elizabeth KNIGHTS, as Executrix of the Estate of William C. Knights, Jr., Deceased, and William A. Stoddard, Sr., Respondents, and Kevin D. Cox, as Administrator of the Goods, Chattels and Credits which were of Henry W. Konowalski, Deceased, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 922

375 N.Y.S.2d 922

50 A.D.2d 122

Theresa MIELCAREK, Respondent, v. Mary Elizabeth KNIGHTS, as Executrix of the Estate of

William C. Knights, Jr., Deceased, and William A. Stoddard,

Sr., Respondents, and Kevin D. Cox, as Administrator of the

Goods, Chattels and Credits which were of Henry W.

Konowalski, Deceased, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 12, 1975.

O'Shea, Adamson, Reynolds & Napier, Buffalo, for appellant (John Adamson, Jr., Buffalo, of counsel).

Miserendino, Krull & Foley, Buffalo, for respondent Mielcarek.

Weaver, Maghran & McCarthy, Buffalo, for respondent Knights (Irving C. Maghran, Jr., Buffalo, of counsel).

Hickey, McHugh & Garlick, Rochester, for respondent Stoddard (Thomas B. Garlick, Jr., Rochester, of counsel).

Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DEL VECCHIO, JJ.

CARDAMONE, Justice:

QUESTION PRESENTED

The sole question to be determined upon this appeal is whether one tortfeasor who has settled with and obtained a release from the plaintiff, and as to whom the plaintiff is willing to discontinue, is entitled to an order of discontinuance; or is he required to attend and participate as a party defendant in the trial of the action against the remaining defendant tortfeasors.

STATUTE

The controlling statute is section 15--108 of the General Obligations Law the amendment of which in 1974 (L.1974, ch. 742) became effective September 1, 1974. It provides that when a release is given to one of two or more persons claimed to be liable in tort for the same injury the other tortfeasors are not released from liability unless the terms of the release expressly so provide; but the claim of the plaintiff against the other tortfeasors is reduced by the amount stated

in the release, or the amount actually paid for the release, or in the amount of the released tortfeasor's equitable share of the damages under Article 14 (contribution) of the CPLR 'whichever is the greatest' (Gen.Oblig.L., § 15--108(a)). The released tortfeasor is thereby relieved from liability to any other person for contribution under Article 14 (Gen.Oblig.L., § 15--108(b)); and the released tortfeasor, by the same token, is not entitled to obtain contribution from any other person (Gen.Oblig.L., § 15--108(c)).

FACTS

The facts to which this statute must be applied arose from a three-car accident which occurred on January 28, 1973 in the Town of Murray in Orleans County. The plaintiff, Theresa Mieclarek, was seriously injured when the Konowalski car in which she was riding as a passenger was in collision both with a car operated by William C. Knights, Jr. and with a car operated by William A. Stoddard, Sr. Henry W. Konowalski and William C. Knights, Jr. both died as a result of this auto accident. Plaintiff brought an action against Stoddard and the Estates of Knights and Konowalski.

During the pendency of these actions a settlement agreement was reached between plaintiff and the administrator of Konowalski's Estate in the amount of $40,000, with plaintiff reserving her right to continue the action against the other two defendants, Knights' Estate and Stoddard. A release was delivered and payment received in that amount. Plaintiff's attorneys tendered a signed stipulation of discontinuance on the merits to the attorneys for the Konowalski Estate who signed it and they, in turn, tendered it to the attorneys for Knights' Estate and Stoddard. These attorneys declined to sign a stipulation which reserved rights against their clients and also declined to sign stipulations of discontinuance of the cross-claim which both of said defendants had entered against the Nonowalski Estate seeking indemnity under Dole v. Dow Chemical, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. The settlement made by plaintiff dated January 7, 1975 was subsequent to the effective date of section 15--108 of the General Obligations Law (Eff. Sept. 1, 1974).

Thereafter, Konowalski's Estate moved at Special Term for the discontinuance of plaintiff's action as against him and for the dismissal of cross-claims interposed by Knights' Estate and Stoddard on the ground that the provisions of section 15--108 fully released the Konowalski Estate. Upon denial of these motions an appeal was taken by stipulation of the parties on a Statement in Lieu of Record on Appeal (CPLR 5527).

LEGISLATIVE BACKGROUND

The question presented on this appeal is apparently one of first impression before the Courts. However, it does involve issues that The 1974 New York State Legislative Annual contains a discussion that sets the background for legislation that resulted in an amendment to section 15--108 of the General Obligations Law, Article 14 of the CPLR and CPLR 4533. The significant impact of the Court of Appeals' decision in Dole on both substantive and procedural matters was acknowledged at the outset. It was recognized that certain problems could only be satisfactorily resolved by the Legislature. The legislative proposals submitted were 'directed towards two principal goals': first, codification and clarification of the fundamental rule embodied in Dole and its progeny. 'Second, a proposed amendment of section 15--108 of the General Obligations Law which would Remove the disincentive to settle which presently exists under Dole for a tortfeasor because he remains subject to contribution to other tortfeasors against whom a judgment in favor of the injured party may be rendered' (1974, New York State Legislative Annual, p. 15) (emphasis supplied).

were considered and studied by the New York State Legislature. Statutory changes were enacted by the Legislature in 1974 which reflect its intent with regard to the problem of settlements that arose following the decision of the Court of Appeals in Dole v. Dow Chemical Co. ¹

The Judicial Conference was the beneficiary of a commissioned study by Professor M. E. Occhialino. ² Professor Occhialino states that New York law Prior to Dole encouraged settlements by one of several tortfeasors since the settlor was not subject to suit by the injured plaintiff; nor was the settlor liable for contribution from a non-settling defendant tortfeasor because a condition precedent for contribution was that a joint judgment exist against the defendant tortfeasors; i.e., a defendant not joined was not liable for contribution. Professor Occhialino isolates two problem areas with respect to settlements following the decision in Dole and before the 1974 amendment to section 15--108. He notes that the non-settling tortfeasors may be required to bear more than their equitable share of the ultimate liability and, further, he states that if Dole is construed to permit the settling tortfeasor to be subject to a suit for contribution by the non-settling tortfeasors (see, e.g. Blass v. Hennessey, 44 A.D.2d 405, 355 N.Y.S.2d 506) then the incentive for settlement is chilled.

The 1974 amendment to section 15--108 of the General Obligations Law was enacted to ensure that the non-settling tortfeasor not be burdened with more than his equitable share because of the fact that another tortfeasor had chosen to settle and, at the same time, to rekindle the incentive for settlements (Supplementary Practice Commentary

by Joseph M. McLaughlin, McKinney's Cons.Laws of N.Y., Book 23A, Pocket Part 1974--75, General Obligations Law, section 15--108, p. 120; Supplementary Practice Commentary by David A. Siegel, McKinney's Cons.Laws of N.Y., Book 7B, Pocket Part 1974--75, CPLR 3019, pp. 9--11; Richard T. Farrell, Civil Practice, 26 Syra.L.Rev. 365, 373).

DISCUSSION

Defendant Stoddard and Knights' Estate contend that the settling defendant, Konowalski, should remain in the action as a party before the court and be required...