Sage v. Hale
| Decision Date | 10 September 1973 |
| Parties | Janice E. SAGE, Plaintiff, v. Cynthia J. HALE, Defendant and Third-Party Plaintiff, v. Marjorie ORTELL, Third-Party Defendant. |
| Court | New York Supreme Court |
Rosenstock & Turner, Albany, for plaintiff; John G. Turner, Jr., Albany, of counsel.
Clayman, Mead & Gallo, Schenectady, for defendant and third-party plaintiff: Daniel D. Mead, Schenectady, of counsel.
Carter, Conboy, Bardwell & Case, Albany, for third-party defendant; Arthur H. Thorn, Albany, of counsel.
This is a motion by the defendant and third-party plaintiff to dismiss plaintiff's cause of action on the ground that the action may not be maintained because of a release (CPLR 3211, subd. (a), par. (5)).
Plaintiff's cause of action to recover damages for her personal injuries arose out of an automobile accident which occurred on June 13, 1971. Plaintiff was a passenger in defendant's vehicle which collided with another vehicle operated by Marjorie Ortell, the third-party defendant. On September 22, 1972, plaintiff executed a release to Marjorie Ortell for the sum of $10,000. The release discharged Marjorie Ortell and 'all other persons, firms and corporations' from any and all actions and claims arising out of the accident. It is the contention of the defendant Cynthia Hale that the action may not be maintained against her because of this release. The third-party defendant has joined in support of this motion.
Section 15--108 of the General Obligations Law provides:
When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater. (Added L.1972, c. 830, § 3.)
Prior to the amendment of article 15 of the General Obligations Law effective September 1, 1972, this release would have been a complete defense to plaintiff's action against the defendant Hale (Berlow v. New York State Thruway Auth., 29 N.Y.2d 949, 329 N.Y.S.2d 579, 280 N.E.2d 366; Malvica v. Blumfeld, 28 N.Y.2d 851, 322 N.Y.S.2d 249, 271 N.E.2d 227; Williams v. Pitts, 40 A.D.2d 1057, 338 N.Y.S.2d 969). As Williams (supra) pointed out, the Legislature amended article 15 to eliminate the inequities of the common-law rule that a general release given to one tort-feasor discharges all others.
Before the amendment by the Legislature, it had been urged that the antiquated common-law rule should be laid to rest (see Berlow v. New York State Thruway Auth., 35 A.D.2d 356, 359, 316 N.Y.S.2d...
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