Poli v. Gara

Appellate Division of the Supreme Court of New York

Poli v. Gara

89 A.D.2d 907, 454 N.Y.S.2d 16, 1982 N.Y. App. Div. LEXIS 18088

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

DecidedAugust 23, 1982

StatusPublished

Cited by1 cases

This text of 89 A.D.2d 907 (Poli v. Gara) 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

Poli v. Gara, 89 A.D.2d 907, 454 N.Y.S.2d 16, 1982 N.Y. App. Div. LEXIS 18088 (N.Y. Ct. App. 1982).

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Opinion

In a medical malpractice action, the third-party defendant Town of Clarkstown appeals from an order of the Supreme Court, Rockland County (Leggett, J.), entered September 21, 1981, which denied its motion to dismiss the third-party complaint as against it. Order reversed, on the law, with $50 costs and disbursements, and motion to dismiss the third-party complaint as against the town is granted. The Town of Clarkstown reached a settlement with plaintiffs and obtained a release from liability on May 4, 1971. Thereafter, in August, 1977, plaintiffs commenced this action against third-party plaintiff and others. A third-party complaint seeking contribution was served upon the town in April, 1980. The town moved to dismiss the third-party complaint and Special Term denied the motion. We reverse. Where both the date of the accident and the date of the instrument of release were antecedent to Dole v Dow Chem. Co. (30 NY2d 143), the rationale of Dole may not be utilized to prejudice the settling party by exposing him to liability which did not previously exist (Codling v Paglia, 32 NY2d 330, 344; Valentino v State of New York, 44 AD 2d 338, 341; Burdick v Pintarelli, 52 AD2d 1027; Benzinger v Wochensky, 59 AD2d 652). Damiani, J. P., Titoiie, Lazer and Gibbons, JJ., concur.

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In a medical malpractice action, the third-party defendant Town of Clarkstown appeals from an order of the Supreme Court, Rockland County (Leggett, J.), entered September 21, 1981, which denied its motion to dismiss the third-party complaint as against it. Order reversed, on the law, with $50 costs and disbursements, and motion to dismiss the third-party complaint as against the town is granted. The Town of Clarkstown reached a settlement with plaintiffs and obtained a release from liability on May 4, 1971. Thereafter, in August, 1977, plaintiffs commenced this action against third-party plaintiff and others. A third-party complaint seeking contribution was served upon the town in April, 1980. The town moved to dismiss the third-party complaint and Special Term denied the motion. We reverse. Where both the date of the accident and the date of the instrument of release were antecedent to Dole v Dow Chem. Co. (30 NY2d 143), the rationale of Dole may not be utilized to prejudice the settling party by exposing him to liability which did not previously exist (Codling v Paglia, 32 NY2d 330, 344; Valentino v State of New York, 44 AD 2d 338, 341; Burdick v Pintarelli, 52 AD2d 1027; Benzinger v Wochensky, 59 AD2d 652). Damiani, J. P., Titoiie, Lazer and Gibbons, JJ., concur.

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Bluebook (online)

89 A.D.2d 907, 454 N.Y.S.2d 16, 1982 N.Y. App. Div. LEXIS 18088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poli-v-gara-nyappdiv-1982.

Opinion

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