| Fiakpoey v Middlesworth |
| 2014 NY Slip Op 04166 [118 AD3d 743] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| Atta Fiakpoey, Respondent, v WilliamMiddlesworth, Appellant, et al., Defendant. |
McAloon & Friedman, P.C., New York, N.Y. (Gina Bernardi Di Folco ofcounsel), for appellant.
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly,Eugene S. R. Pagano, and Mitchell Gittin of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantWilliam Middlesworth appeals, as limited by his brief, from so much of an order of theSupreme Court, Westchester County (Lefkowitz, J.), entered March 11, 2013, as, uponrenewal, adhered to the determination in an order of the same court entered June 13,2012, denying his motion for summary judgment dismissing the complaint insofar asasserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and, upon renewal, the order entered June 13, 2012, is vacated, and that branch of thedefendant's motion which was for summary judgment dismissing the complaint insofar asasserted against him is granted.
In the weeks following the infant plaintiff's premature birth, he received treatment atOur Lady Of Mercy Medical Center (hereinafter OLOM) for various conditionsincluding necrotizing enterocolitis, which affects the bowel. The defendant WilliamMiddlesworth, a pediatric surgeon, was employed by Columbia University, which,according to Middlesworth, had a "medical service affiliation agreement" with OLOM,whereby, according to Middlesworth's deposition testimony, he and some of hisColumbia University colleagues provided all of OLOM's pediatric surgery coverage.Middlesworth was not employed by OLOM, but had attending privileges there and wasacting as the on-call pediatric surgeon on the evening of July 10, 2003, when he receiveda consult request for the infant plaintiff from a surgical resident employed by OLOM.The complaint alleges that, during this consult, Middlesworth negligently failed to detectair in the infant plaintiff's abdominal cavity, a sign that the bowel may have a hole orperforation.
On July 10, 2006, the infant plaintiff, by his mother and natural guardian, ElizabethFrempong Darko, commenced an action, inter alia, to recover damages for medicalmalpractice against OLOM and several other defendants relating to a range of treatmenthe received during and after delivery, but Middlesworth was not named as a defendant.Following OLOM's subsequent petition for bankruptcy, it entered into a court-approvedsettlement agreement with the infant plaintiff, whereby OLOM agreed to pay $1 millionaccording to the terms of a general release (hereinafter Release). The Release stated, inrelevant part, that the infant plaintiff, by his parent and natural guardian:
"completely and irrevocably releases and forever discharges Our Lady of MercyMedical Center and its . . . agents, servants, representatives, employees. . . affiliates and employees of all . . . affiliates. . . , past, present, or future (individually and collectively, the 'Releasee') from all actions, causes of action, [or] suits . . . , whetherpresently known or unknown, asserted or unasserted, which, against the Releasee theReleasor . . . ever had, could have had, now has, or hereinafter can, shall ormay have, or that may hereafter accrue, for, upon or by reason of any matter, cause orthing whatsoever from the beginning of the world to the date of this Release.
"This Release and settlement constitutes complete payment for all damages andinjuries alleged to be proximately caused by the Releasee and is specifically intended torelease the Releasee as well as all tortfeasors and/or other persons or entities whetherpresently known or unknown, at any time liable or claimed to be liable for those damagesor injuries, who are (a) insured through the CCC Insurance Program, and/or (b) owed anyobligation of indemnity by the Releasee."
Thereafter, on May 25, 2010, the infant plaintiff commenced this action againstMiddlesworth and a codefendant. The codefendant was later released from the lawsuit byvirtue of his coverage through OLOM's CCC insurance policy. Middlesworth moved forsummary judgment dismissing the complaint insofar as asserted against him, whichmotion was denied in an order entered June 13, 2012. Middlesworth later moved, interalia, for leave to renew, arguing, among other things, that he was entitled to dismissal ofthe complaint based, among other things, upon the prior release and res judicata. Uponrenewal, the Supreme Court adhered to its earlier determination denying the motion.
Pursuant to General Obligations Law § 15-108 (a), "[w]hen a release. . . is given to one of two or more persons liable or claimed to be liable intort for the same injury . . . it does not discharge any of the other tortfeasorsfrom liability for the injury . . . unless its terms expressly so provide"(emphasis added). The statute does not require that every discharged party be specificallynamed or identified (seeKoufakis v Siglag, 85 AD3d 872 [2011]; Wells v ShearsonLehman/American Express, 72 NY2d 11, 21-22 [1988]). A release which is clearand unambiguous will be fully enforced (see Koufakis v Siglag, 85 AD3d at873-874; Matter of Brooklyn Resources Recovery, 309 AD2d 931, 932 [2003]),and the court may not look to extrinsic evidence to determine the parties' intent (see Rodriguez v Saal, 51 AD3d449, 450 [2008]; see also Greenfield v Philles Records, 98 NY2d 562, 569[2002]). Moreover, a release executed incident to a court-approved settlement of aninfant's claim against a particular defendant may bar subsequent claims against jointtortfeasors not named in the settlement if, as here, the release expressly so provides (see Koufakis v Siglag, 85AD3d 872 [2011]; Krichmar v Krichmar, 42 NY2d 858, 860 [1977]).
Here, Middlesworth established his prima facie entitlement to judgment as a matterof law by demonstrating that he was an "agent" of OLOM and, thus, a "Releasee" underthe terms of the Release. In opposition, the infant plaintiff failed to raise a triable issue offact. The infant plaintiff's attorneys' apparent misunderstanding of the terms of theRelease is an insufficient basis to avoid the consequences of the Release (see Koufakis v Siglag, 85AD3d 872 [2011]; Matter of Brooklyn Resources Recovery, 309 AD2d at932; Chaudhry v Garvale, 262 AD2d 518, 519 [1999]). Accordingly, theSupreme Court, upon renewal, should have granted Middlesworth's motion for summaryjudgment dismissing the complaint insofar as asserted against him (see Koufakis v Siglag, 85AD3d 872 [2011]; see alsoDragotta v Southampton Hosp., 39 AD3d 697 [2007]).
The parties' remaining contentions either are not properly before this Court or neednot be reached in light of our determination. Dickerson, J.P., Leventhal, Hall and Miller,JJ., concur.