Thailer v. LaRocca

• Decision Date: 24 June 1991
• Citation: 571 N.Y.S.2d 569,174 A.D.2d 731
• Parties: Mark J. THAILER, Appellant, v. Richard LaROCCA, et al., Defendants Third-Party Plaintiffs-Respondents; The Bank of New York, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 569

571 N.Y.S.2d 569

174 A.D.2d 731

Mark J. THAILER, Appellant, v. Richard LaROCCA, et al., Defendants Third-Party Plaintiffs-Respondents The Bank of New York, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

June 24, 1991.

Levenberg & Badner, Mineola (Jeffrey A. Badner, of counsel), for appellant.

Suellan M. Galish, New York City, for third-party defendant-respondent.

Before THOMPSON, J.P., and KUNZEMAN, MILLER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for, inter alia, defamation, the plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Burstein, J.), entered April 3, 1989, as, upon granting the motion of the third-party defendant Bank of New York for summary judgment dismissing the third-party complaint, searched the record and dismissed his complaint.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs to the third-party defendant-respondent.

The plaintiff commenced this action against his former employer, Metro Marketing, Inc., and its president Richard LaRocca, alleging that LaRocca made false statements about his job performance in response to an inquiry by his new employer, the Bank of New York. Metro Marketing, Inc., and LaRocca (hereinafter collectively referred to as "Metro") then commenced a third-party action against the bank for indemnification and contribution, claiming that the bank had falsely represented that the communication with respect to the plaintiff's job performance would be kept confidential. On the bank's motion for summary judgment dismissing the third-party complaint, the court searched the record and determined that a release signed by the plaintiff might bar his action. The court adjourned the motion to afford all parties an opportunity to address this issue. Following the submission of memoranda by the parties, the court found that the release signed by the plaintiff barred his claims and dismissed the plaintiff's complaint as well as the third-party complaint.

The plaintiff contends on appeal that the court erred in sua sponte raising the issue of the release, as this defense was not pleaded by Metro. Permission to amend pleadings should be freely given absent prejudice to the other side (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164; CPLR 3025[b], and pleadings may be conformed to the proof at any time (see, CPLR 3025[c]. In response to the court's decision, Metro submitted a memorandum in which it argued that the release barred the plaintiff's claims. The plaintiff addressed this issue on the merits and failed to raise any claim of prejudice. Moreover, we note that Metro raised as an affirmative defense that the statements to the bank were privileged and that the plaintiff "consented to such privilege". Therefore, the plaintiff...