| Rodriguez v Saal |
| 2008 NY Slip Op 04202 [51 AD3d 449] |
| May 6, 2008 |
| Appellate Division, First Department |
| Elena Alicea Rodriguez et al., Respondents, v Stuart Saalet al., Defendants, and New York Organ Donor Network et al.,Appellants. |
—[*1] Dinkes & Schwitzer, New York (Anthony Forgione of counsel), for respondents.
Order, Supreme Court, New York County (Joan B. Carey, J.), entered November 2, 2007,which, in an action for wrongful death alleging that a cancerous kidney transplanted intoplaintiff's decedent at defendant hospital was procured by defendant-appellant organ donornetwork (Network), denied Network's motion to dismiss the complaint as against it on the groundof release, with leave to renew after a hearing on the issue of whether the subject release wasintended to cover Network, unanimously reversed, on the law, without costs, and the motiongranted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing thecomplaint as against them.
The subject "general release" states that consideration provided by the hospital constituted"complete payment for all damages and injuries" and was intended to release not only thehospital but also, "whether presently known or unknown, all other tortfeasors liable or claimed tobe liable jointly with the [hospital]; and whether presently known or unknown all other potentialor possible tortfeasors liable or claimed to be liable jointly with the [hospital]." Some fourmonths earlier, when plaintiff and the hospital advised the court of their settlement, plaintiff'sattorney stated that the settlement was not intended to include Network; it appears that Network'sattorney was not present at this conference, and that there was no response to this statement fromthe hospital's attorney. The action should be dismissed as against Network based on this clear andunambiguous release intended to put an end to the action. Any ambiguity was created byplaintiff's counsel's statements on the record months before the release was executed. Thosestatements are extrinsic to the release and other settlement documents and therefore cannot beconsidered (see Wells v Shearson Lehman/American Express, 72 NY2d 11, 19 [1988]). Itdoes not avail plaintiff that Network was not specifically identified in the release (id.).We have considered plaintiff's other arguments and find them unavailing.Concur—Lippman, P.J., Saxe, Buckley and Acosta, JJ.