Burdick v. Pintarelli

Appellate Division of the Supreme Court of New York

Burdick v. Pintarelli

52 A.D.2d 1027, 383 N.Y.S.2d 694, 1976 N.Y. App. Div. LEXIS 12930

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 27, 1976

StatusPublished

Cited by3 cases

This text of 52 A.D.2d 1027 (Burdick v. Pintarelli) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burdick v. Pintarelli, 52 A.D.2d 1027, 383 N.Y.S.2d 694, 1976 N.Y. App. Div. LEXIS 12930 (N.Y. Ct. App. 1976).

Pincite

Opinion

Appeal by the third-party defendant from an order of the Supreme Court at Special Term, entered October 2, 1975 in Rensselaer County, which denied a motion to dismiss the third-party complaint. The present action arises out of an automobile accident which occurred on February 6, 1971. Plaintiff was a passenger in an automobile owned and being operated by Frank Taylor, the third-party defendant’s testate, which was in collision with a vehicle owned by defendant and third-party plaintiff Gilbert Stores, Co., Inc., and operated by defendant third-party plaintiff Tony Pintarelli. On March 2, 1972 plaintiff entered into a settlement agreement with a covenant not to sue with the representative of Taylor’s estate and, thereafter, commenced the present action alleging active negligence on the part of the defendants. The defendants brought a third-party action against the estate of Taylor. The third-party defendant moved to dismiss the complaint in such action on the grounds that the settlement agreement and covenant not to sue precluded the third-party plaintiff from seeking indemnification or contribution. Special Term denied the motion and this appeal ensued. In Jordan v County of Schoharie (46 AD2d 716) and Valentino v State of New York (44 AD2d 338) we considered the precise issue presented on this appeal, and, relying on Codling v Paglia (32 NY2d 330, 344), we held that the decision of Dole v Dow Chem. Co. (30 NY2d 143) should not be retroactively applied to a preDole settlement and covenant not to sue entered into between an injured party and one of two potential joint tort-feasors. Thus, Special Term improperly denied the motion to dismiss the third-party complaint and the order must be reversed. Order reversed, on the law and the facts, and motion to dismiss the third-party complaint granted, with costs. Greenblott, J. P., Sweeney, Main, Larkin and Reynolds, JJ., concur.

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Appeal by the third-party defendant from an order of the Supreme Court at Special Term, entered October 2, 1975 in Rensselaer County, which denied a motion to dismiss the third-party complaint. The present action arises out of an automobile accident which occurred on February 6, 1971. Plaintiff was a passenger in an automobile owned and being operated by Frank Taylor, the third-party defendant’s testate, which was in collision with a vehicle owned by defendant and third-party plaintiff Gilbert Stores, Co., Inc., and operated by defendant third-party plaintiff Tony Pintarelli. On March 2, 1972 plaintiff entered into a settlement agreement with a covenant not to sue with the representative of Taylor’s estate and, thereafter, commenced the present action alleging active negligence on the part of the defendants. The defendants brought a third-party action against the estate of Taylor. The third-party defendant moved to dismiss the complaint in such action on the grounds that the settlement agreement and covenant not to sue precluded the third-party plaintiff from seeking indemnification or contribution. Special Term denied the motion and this appeal ensued. In Jordan v County of Schoharie (46 AD2d 716) and Valentino v State of New York (44 AD2d 338) we considered the precise issue presented on this appeal, and, relying on Codling v Paglia (32 NY2d 330, 344), we held that the decision of Dole v Dow Chem. Co. (30 NY2d 143) should not be retroactively applied to a preDole settlement and covenant not to sue entered into between an injured party and one of two potential joint tort-feasors. Thus, Special Term improperly denied the motion to dismiss the third-party complaint and the order must be reversed. Order reversed, on the law and the facts, and motion to dismiss the third-party complaint granted, with costs. Greenblott, J. P., Sweeney, Main, Larkin and Reynolds, JJ., concur.

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Bluebook (online)

52 A.D.2d 1027, 383 N.Y.S.2d 694, 1976 N.Y. App. Div. LEXIS 12930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burdick-v-pintarelli-nyappdiv-1976.

Opinion

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