Spector v. K-Mart Corp., K-MART

• Decision Date: 19 January 1984
• Docket Number: K-MART
• Parties: Douglas M. SPECTOR, Respondent, v.CORPORATION, Defendant and Third-Party Plaintiff-Respondent; SmithKline Beckman Corporation, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 711

471 N.Y.S.2d 711

99 A.D.2d 605

Douglas M. SPECTOR, Respondent, v. K-MART CORPORATION, Defendant and Third-Party Plaintiff-Respondent SmithKline Beckman Corporation, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 19, 1984.

Bohl, Clayton, Komar & Della Rocca, P.C., Albany (Abilio Tavares, Jr., Albany, of counsel), for third-party defendant-appellant.

Gerald A. Harley, Hoosick Falls, for respondent Spector.

Before KANE, J.P., and MAIN, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered March 16, 1983 in Albany County, which denied third-party defendant's motion to dismiss the complaint and the third-party complaint.

Plaintiff allegedly sustained ill effects from the use of selacryn, a prescription drug manufactured by SmithKline Beckman Corporation, and colchicine, both of which medications he purchased from K-Mart Corporation between July 2 and November 19, 1979. On January 26, 1982, plaintiff executed a general release to SmithKline in which he settled all of his claims for damages for personal injuries arising out of the ingestion of selacryn "including, but not limited to, all liability for contribution and/or indemnity". He was paid $40,000 as consideration by SmithKline. By service of a complaint dated October 18, 1982, plaintiff commenced the underlying action against K-Mart, stating causes of action in negligence, strict products liability and breach of warranty. Following joinder of issue, K-Mart served a third-party summons and complaint upon SmithKline seeking contribution or indemnification. Special Term denied SmithKline's CPLR 3211 (subd. [a], par. 5) motion to dismiss both the complaint and third-party complaint. For the reasons which follow, we affirm.

Essentially, SmithKline reasons that since the subject release, by its terms, also released K-Mart, both the principal action and third-party action must fall pursuant to the mandate of section 15-108 (subd. [a] ) of the General Obligations Law. We disagree. That section provides that a release given to one of two or more tort-feasors does not extend to the remaining tortfeasors "unless its terms expressly so provide". The statute was designed to eliminate the inequities existent under the common-law rule where a general release given to one wrongdoer discharged all others (see Williams v. Pitts, 40 A.D.2d 1057, 1058, 338 N.Y.S.2d 969). Consistent with this purpose, section 15-108 has been construed to require an express designation by name or other specific identification of which parties are intended to be released (see Sage v. Hale, 75 Misc.2d 256, 257-258, 347 N.Y.S.2d 416).

Here, the release stated that SmithKline and "all other persons, firms, or corporations" were released from liability for plaintiff's ingestion of selacryn. In our view, this broad language fails to satisfy the statutory requirement. When read in context, the quoted language constitutes more of an attempt to insulate the...