Tufail v. Hionas

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BROWN
• Citation: Tufail v. Hionas, 156 A.D.2d 670, 549 N.Y.S.2d 436 (N.Y. App. Div. 1989)
• Decision Date: 26 December 1989
• Parties: Mohammed TUFAIL, Respondent, v. George HIONAS, Appellant.

Page 436

549 N.Y.S.2d 436

156 A.D.2d 670

Mohammed TUFAIL, Respondent, v. George HIONAS, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 26, 1989.

Don F. Salkaln, Hauppauge (Robert Sweeney, of counsel), for appellant.

Amideo Nicholas Guzzone, Centereach (Kenneth A. Scott, of counsel), for respondent.

Before BROWN, J.P., and KUNZEMAN, HARWOOD and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Gerard, J.) entered May 31, 1988, which denied his motion to dismiss the complaint.

ORDERED that the order is modified by adding thereto a provision dismissing the defendant's second defense; as so modified, the order is affirmed, with costs to the plaintiff.

It is undisputed that the plaintiff sustained injury while a passenger in a vehicle which was driven by the defendant with the consent of the owner and which collided with a tree. In exchange for $10,000 paid by the owner's insurer, the plaintiff executed a standard "Blumberg" form release (see, McDaniel v. Gordon, 99 A.D.2d 826, 472 N.Y.S.2d 420) in favor of the owner. The release did not mention the defendant. The plaintiff thereafter commenced this action against the defendant. The defendant's answer asserted, inter alia, that the release in favor of the owner constituted a bar to this action against him. Approximately two years later, the defendant, without reference to any procedural statute, move to dismiss the action on that ground. The defendant appeals from the order denying his motion.

It is well settled that, because of the enactment of General Obligations Law § 15-108 (see, L.1972 ch. 830), a release given to one tortfeasor no longer operates to discharge any other tortfeasor liable for the same injury unless the terms of the release "expressly so provide[s]" (General Obligations Law § 15-108[a]; see, e.g., Wells v. Shearson Lehman/American Express, 72 N.Y.2d 11, 530 N.Y.S.2d 517, 526 N.E.2d 8). This is so whether the tortfeasors are joint, successive or vicarious (see, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 83, 499 N.Y.S.2d 904, 490 N.E.2d 823; cf., Riviello v. Waldron, 47 N.Y.2d 297, 307, 418 N.Y.S.2d 300, 391 N.E.2d 1278; Ott v. Barash, 109 A.D.2d 254, 261-262, 491 N.Y.S.2d 661; McDaniel v. Gordon, 99 A.D.2d 826, 472 N.Y.S.2d 420, supra ).

The Supreme Court correctly denied the defendant's motion (see, General Obligations Law § 15-108[a]. However, since issue has long since been joined, the Supreme Court should not have deemed the defendant's unlabeled motion to be one made pursuant to CPLR 3211(a)(5) but should have rather treated the motion as one for summary judgment pursuant to CPLR 3212 (see Rich v. Lefkovits, 56 N.Y.2d 276, 452 N.Y.S.2d 1, 437 N.E.2d 260; Connell v. Hayden, 83 A.D.2d 30, 32, 443 N.Y.S.2d 383). Moreover, since the validity of the release is not at issue and since there is no language in it which could properly be construed as an...