| Lipiner v Santoli |
| 2009 NY Slip Op 02565 [60 AD3d 1001] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Lucy Lipiner, Plaintiff, and Edward Lipiner, Plaintiff andThird-Party Defendant-Appellant, v Dawn M. Santoli, Defendant and Third-PartyPlaintiff-Respondent. |
—[*1] McAndrew, Conboy & Prisco, LLP, Woodbury, N.Y. (William J. Poisson and NadiaChionchio of counsel), for defendant third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the plaintiff third-party defendant,Edward Lipiner, appeals from an order of the Supreme Court, Kings County (Balter, J.), datedSeptember 24, 2008, which, in effect, denied his motion to dismiss the defendant and third-partyplaintiff's counterclaim and the third-party complaint on the ground of release.
Ordered that the order is reversed, on the law, with costs, and the motion to dismiss thedefendant and third-party plaintiff's counterclaim and the third-party complaint on the ground ofrelease is granted.
This action stems from a motor vehicle accident between a car owned and operated by theplaintiff and third-party defendant, Edward Lipiner, and one owned and operated by thedefendant and third-party plaintiff, Dawn Santoli. The plaintiff Lucy Lipiner was a passenger inthe Lipiner vehicle. Santoli first commenced an action against Edward Lipiner seeking to recoverfor personal injuries which she allegedly sustained as a result of the accident. The plaintiffs thencommenced the instant action to recover damages arising from the same accident. Santoliinterposed an answer to that complaint without asserting a counterclaim, but she subsequentlybrought a third-party action against Edward Lipiner seeking contribution and/or indemnification.Thereafter, in consideration of a $3,000 payment, Santoli executed a general release in favor ofEdward Lipiner, and discontinued [*2]her personal injury actionagainst him.
Counsel for the parties then entered into a stipulation allowing Santoli to amend her answerto assert a counterclaim against Edward Lipiner, and she thereafter asserted a counterclaimagainst Edward Lipiner for contribution and indemnification. However, Edward Lipiner thenmoved to dismiss the counterclaim and the third-party complaint pursuant to CPLR 3211 (a) (5)as barred by the general release. The Supreme Court denied the motion without an explanation.We reverse.
The general release executed by Santoli is neither vague nor ambiguous, and it releasesEdward Lipiner from "all actions, causes of action, suits . . . damages, judgments. . . . whatsoever from the beginning of the world to the day of the date of thisRelease." It is also undisputed that Santoli was represented by counsel at the time of the releaseand that she "willingly" executed the release. Moreover, at the time of the execution of therelease, this action had been commenced and the third-party complaint, which also soughtcontribution and indemnification, had been interposed.
Under these facts and circumstances, Santoli's unsubstantiated allegation that she did notintend the release to bar her contribution/indemnification claim against Edward Lipiner wasinsufficient to defeat the motion to dismiss (see General Obligations Law § 15-108[a], [c]; Barry v Hildreth, 9 AD3d 341 [2004]; Touloumis v Chalem, 156 AD2d230 [1989]; see also McNally v Corwin, 30 AD3d 482 [2006]; cf. Tarantola vWilliams, 48 AD2d 552 [1975]). Skelos, J.P., Fisher, Santucci and Balkin, JJ., concur.