| Ziviello v O'Boyle |
| 2011 NY Slip Op 09315 [90 AD3d 916] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Laurel Ziviello et al., Respondents, v Joseph G. O'Boyle etal., Defendants/Third-Party Plaintiffs-Respondents. Brett A. Punzi Contracting Corp. et al.,Third-Party Defendants-Appellants. |
—[*1] Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for plaintiffs-respondents. DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), fordefendants/third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the third-party defendants appealfrom an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated September 14, 2010,which denied their motion, in effect, pursuant to CPLR 3211 (a) (5) to dismiss the third-partycomplaint as barred by a release.
Ordered that the order is reversed, on the law, with one bill of costs, and the third-partydefendants' motion, in effect, pursuant to CPLR 3211 (a) (5) to dismiss the third-party complaintas barred by a release is granted.
The plaintiffs commenced this action against the defendants Joseph G. O'Boyle and John T.O'Boyle (hereinafter together the O'Boyle defendants) and a separate action against Brett A.Punzi Contracting Corp. and Ernesto Gomez (hereinafter together the Punzi defendants) torecover, inter alia, damages for injuries allegedly sustained by the plaintiff Laurel Ziviello in twoseparate automobile accidents. The actions were joined for trial, and thereafter, in this action, theO'Boyle defendants commenced a third-party action against the Punzi defendants. The third-partycomplaint asserted a single cause of action for contribution, claiming that, if the plaintiffs wereawarded damages against the O'Boyle defendants, then the Punzi defendants were obligated tocontribute to the judgment according to their proportionate share of fault. After thecommencement of the third-party action, the plaintiffs reached a settlement with the Punzidefendants and executed a release in favor of the Punzi defendants and a stipulationdiscontinuing the action against the Punzi defendants. The Punzi defendants then moved, ineffect, pursuant to CPLR 3211 (a) (5) to dismiss the third-party complaint, claiming that thethird-party action could not be maintained because of the [*2]release. The Supreme Court denied the motion. The Punzidefendants appeal. We reverse.
General Obligations Law § 15-108 (b) provides that: "A release given in good faith bythe injured person to one tortfeasor as provided in [General Obligations Law § 15-108] (a)relieves him from liability to any other person for contribution as provided in article fourteen ofthe civil practice law and rules." Here, the plaintiffs executed a release in favor of the Punzidefendants. There is no allegation that the release was not executed in good faith, and there is noevidence to support such a claim. Pursuant to the plain language of General Obligations Law§ 15-108 (b), based upon the release, the Punzi defendants are relieved from liability to theO'Boyle defendants for contribution (see General Obligations Law § 15-108 [b]; see also Boeke v Our Lady of PompeiSchool, 73 AD3d 825, 827 [2010]; Kagan v Jacobs, 260 AD2d 442, 443[1999]). Accordingly, the Supreme Court should have granted the Punzi defendants' motion, ineffect, pursuant to CPLR 3211 (a) (5) to dismiss the third-party complaint as barred by therelease. Rivera, J.P., Angiolillo, Belen and Roman, JJ., concur.