Plath v. Justus
| Decision Date | 08 December 1969 |
| Parties | Erwin E. PLATH, Individually and as Executor of the Estate of Mary E. Plath, Deceased, Respondent, v. Rose M. JUSTUS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Sanford Rosenblum, Albany, David F. Kunz, Delmar, for respondent.
Carter & Conboy, James S. Carter, Albany, for appellant.
Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT, and COOKE, JJ.
Appeal from an order of the Supreme Court, Rensselaer County, denying appellant's motion to dismiss the complaint.
Respondent's decedent was allegedly struck and killed by an automobile owned by appellant and driven by a third-party. Thereafter respondent executed a release of the driver but purported to reserve his rights against the appellant. Respondent then instituted the present action, premised upon appellant's liability under section 388 of the Vehicle and Traffic Law, and appellant moved to dismiss the complaint on the ground that the release of the driver effected her release also. Special Term denied the motion on the basis that the release was, in fact, a covenant not to sue with no intent by the parties that appellant be released, and the instant appeal ensued.
It is unquestionably true that a release of one joint tortfeasor, which expressly reserved the right against another tortfeasor, will not discharge that tortfeasor (e.g., Lucio v. Curran, 2 N.Y.2d 157, 157 N.Y.S.2d 948, 139 N.E.2d 133) and that a release of one co-obligor will not release other co-obligors if the obligee expressly reserves his rights in writing as part of the same transaction (General Obligations Law, §§ 15--101 to 15--109). While the liability of the instant owner is not technically the same as that of the co-obligor, the joint tortfeasor (Sarine v. American Lumbermen's Mutual Casualty Co., 258 App.Div. 653, 17 N.Y.S.2d 754; Martindale v. Griffin, 233 App.Div. 510, 253 N.Y.S. 578) or the master for his servant (Gochee v. Wagner, 257 N.Y. 344, 178 N.E. 553; Sikora v. Keillor, 17 A.D.2d 6, 230 N.Y.S.2d 571), as a matter of law or policy we find no reason why the instant release should not be given the limited effect the parties intended. The appellant has demonstrated no prejudice to her, and such a position is clearly in harmony with the evolution of the law in this area (see Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556), the expedient processing of pending litigation by encouraging settlement and, last but by no means least, the unquestioned understanding and intent of the parties to the agreement.
Order affirmed, with costs.
HERLIHY, P.J., dissents and votes to reverse and dismiss the complaint.
I am to reverse premised on the provisions of section 388 of the Vehicle & Traffic Law, without which the absentee owner would not be liable or responsible and, additionally, because of the rationale in Sikora v. Keillor, 17 A.D.2d 6, 230 N.Y.S.2d 571, affd. 13 N.Y.2d 610, 611, 240 N.Y.S.2d 601, 191 N.E.2d 88, where the memorandum of the Court of Appeals stated: '(I)n view of the derivative character of the owner's statutory liability under section 388 of the Vehicle and Traffic Law, there was no right of action against the owner where no recovery could be had against the operator.'
Prior to the enactment of section 388's predecessor (Vehicle & Traffic Law, § 59) New York courts had consistently refused to impose Respondeat superior liability on the owner of a car merely for permitting another to drive it (Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A.L.R 785; Van Blaricom v. Dodgson, 220 N.Y. 111, 115 N.E. 443). The Legislature responded with what is now section 388. The owner's liability under this section does not rest on any finding of his negligence--direct,...
To continue reading
Request your trial
-
White v. Smith
...one judgment. Accord, American Surety Co. v. Diamond, 1 N.Y.2d 594, 154 N.Y.S.2d 918, 136 N.E.2d 876 (1956). Cf., Plath v. Justus, 33 A.D.2d 833, 306 N.Y.S.2d 80 (1964), affd. 28 N.Y.2d 16, 319 N.Y.S.2d 433, 268 N.E.2d 117 B. Finally, Avis and Chrysler submit that both cannot be "owners" fo......
-
Berlow v. New York State Thruway Authority
...matter of law a release of all joint tort-feasors (cf. Lucio v. Curran, 2 N.Y.2d 157, 157 N.Y.S.2d 948, 139 N.E.2d 133; Plath v. Justus, 33 A.D.2d 833, 306 N.Y.S.2d 80. However, a comparison of the Derby and the Milks cases leaves no doubt that there has been a liberalization insofar as the......
-
Caldararo v. Au, 83 Civ. 1628 (ADS).
... ... See Plath v. Justus, 28 N.Y.2d 16, 20, 268 N.E.2d 117, 118-19, 319 N.Y.S.2d 433, 435-36 (1971), affirming 33 A.D.2d 833, 306 N.Y. S.2d 80, (3d Dep't 1969); ... ...
-
Plath v. Justus
...and not a general release and, therefore, did not release the defendant. The Appellate Division affirmed, one Justice dissenting, 33 A.D.2d 833, 306 N.Y.S.2d 80. The appeal is now before us pursuant to a certified question 'Did Special Term err as a matter of law, in denying the motion to d......