Werner v. Our Lady of Lourdes

60 A.D.2d 791, 400 N.Y.S.2d 659, 1977 N.Y. App. Div. LEXIS 14856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1977
• Status: Published

Opinion

Order and judgment unanimously affirmed, without costs. Memorandum: The infant plaintiff was attending gym class at the school of the defendant Our Lady of Lourdes. During a break in the class he was struck in the mouth by a street hockey stick swung by another student, defendant David Allen. While the jury was deliberating, the plaintiffs settled their claims against the defendant Allen for the sum of $2,000. The jury returned a verdict of no cause of action in favor of the defendant Allen and also returned a verdict against the defendant Our Lady of Lourdes in the sum of $3,000 on the infant’s personal injury claim and in the sum of $250 on the father’s derivative claim. The amount of the settlement paid by the defendant Allen was properly applied to reduce the amount of the judgment against the defendant Our Lady of Lourdes (Mielcarek v Knights, 50 AD2d 122; General Obligations Law, § 15-108). (Appeal from order and judgment of Monroe Supreme Court—amount of judgment.) Present—Marsh, P. J., Cardamone, Dillon, Hancock, Jr., and Witmer, JJ.