Linn v. New York Downtown Hospital , 31 N.Y.S.3d 504 ( 2016 )

Linn v New York Downtown Hosp. (2016 NY Slip Op 03992)

Linn v New York Downtown Hosp.

2016 NY Slip Op 03992

Decided on May 24, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 24, 2016
Sweeny, J.P., Renwick, Moskowitz, Kapnick, Gesmer, JJ.

1224 800017/11

[*1]Kenneth Linn, et al., Plaintiffs-Respondents,

v

New York Downtown Hospital, Defendant-Respondent, New York City Health and Hospitals Corporation, et al., Defendants, Viorel Nicolescu, M.D., Defendant-Appellant.

James W. Tuffin, Islandia, for appellant.

Ronemus & Vilensky, LLP, New York (Lawrence H. Singer of counsel), for Kenneth Linn and Hadassah Diaz Linn, respondents.

Ivone, Devine & Jensen, LLP, Lake Success (Robert Devine of counsel), for New York Downtown Hospital, respondent.

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered October 31, 2014, which denied defendant Viorel Nicolescu, M.D.'s motion for summary judgment dismissing the complaint as against him on the grounds that a general release executed by plaintiffs bars plaintiffs' action against him, unanimously affirmed, without costs.

The release at issue provides that, in exchange for defendant Cabrini Center for Nursing and Rehabilitation's (Cabrini) payment to plaintiffs of $25,000, plaintiffs released Cabrini, its insurer, and their "agents, servants, employees, [and] staff," from "all . . . actions, causes and causes of action . . . which against the said [Cabrini] the plaintiffs ever had, . . ." "The meaning and extent of coverage of a release necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given'" (Rotondi v Drewes, 31 AD3d 734, 735-736 [2d Dept 2006], quoting Cahill v Regan, 5 NY2d 292, 299 [1959]). "[A] release may not be read to cover matters which the parties did not desire or intend to dispose of" (id.; Morales v Solomon Mgt. Co., LLC, 38 AD3d 381, 382 [1st Dept 2007]).

Assuming arguendo that defendant Nicolescu, a private attending physician at Cabrini, could be considered a "staff" member of Cabrini, the release is unambiguously limited only to "causes of action" that plaintiffs had against Cabrini, and does not release any other tortfeasors not expressly named therein from liability for causes of action asserted against them (General Obligations Law § 15-108[a]; Morales at 382; compare Bernard v Sayegh, 104 AD3d 600 [1st Dept 2013]). Interpreting the release as urged by defendant Nicolescu to release him from liability for causes of action asserted against him individually would return to the common law rule in effect before enactment of General Obligations Law § 15-108(a), when general releases were "a trap for the average man who quite reasonably assumes that settling his claim with one [*2]person does not have any effect on his rights against others with whom he did not deal" (Wells v Shearson Lehman/American Express, 72 NY2d 11, 22 [1988]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2016

CLERK