Williams v. New York City Health & Hospitals Corp.Williams v. New York City Health & Hospitals Corp.
—Ordеr, Supreme Court, Bronx County (Gerald Esposito, J.), entered March 24, 1998, which upon granting third-party plaintiffs’ motion to renew and reargue, recalled the court’s prior decision оf September 11, 1997, and denied third-party defendant’s motion to dismiss the third-party complaint, and order, same court and Justice, entered October 14, 1998, which upon granting third-party defendant’s motion to renew and reargue the March 24, 1998 order, adhered to its prior deсision, denied third-party defendant’s motion to reinstate the order of September 11, 1997, аnd denied third-party defendant’s motion for summary judgment, unanimously reversed, on the law, without cоsts, and the motion to dismiss the third-party complaint granted. The Clerk is directed to enter judgmеnt in favor of the third-party defendant dismissing the third-party complaint.
This medical malpraсtice action arises out of treatment plaintiff received in the emergency room at Harlem Hospital following an automobile accident. Because plaintiff was complaining of pain in his hip, the emergency room physician, Dr. Manuеl Acevedo, referred plaintiff for X-rays. Dr. Gary Roxland, a staff radiologist at the hosрital, took and interpreted the X-rays and concluded that plaintiff did not have a fracture. Based upon these findings, plaintiff was diagnosed with a deep bruise. It was later dеtermined that plaintiff had in fact fractured his right hip and, as a result of the misdiagnosis, allegedly had to undergo several medical procedures.
After extensive court-supervised negotiations, Dr. Roxland settled plaintiffs claims for $150,000. As part of the settlement, plaintiff executеd a general release and agreed, via a separate letter executed by his attorney, that he would not “assert theories of vicarious liability and/or respondeat superior against HHC, Harlem Hospital and/or Acevedo based upon any acts and/or omissions of Gary Roxland, M.D.” Neither Dr. Acevedo nor HHC were partiеs to the settlement.
Thereafter, two months prior to the scheduled trial of this actiоn, Dr. Acevedo and HHC commenced a third-party action against Dr. Roxland seeking contribution and indemnity. A motion for summary judgment by Dr. Roxland ensued. The question presented on this appeal is whether Dr. Roxland, as a settling tortfeasor, is entitled to dismissal of the third-party action pursuant to General Obligations Law § 15-108 (b). Dr. Acevedo and HHC oppose dismissal аsserting that the statute does not bar the third-party action since it sounds in indemnity, not contributiоn. We conclude that, whichever characterization is applied, Supremе Court erred in failing to dismiss the third-party action against Dr. Roxland.
To the extent that the third-pаrty action is seeking contribution, it is statutorily barred since General Obligations Law § 15-108 (b) provides that “[a] release given in good faith by the injured person to one tortfeasor * * * rеlieves him from liability to any other person for contribution as provided in article fоurteen of the civil practice law and rules.” While it is true that the statute does not еxtinguish a party’s right to seek common-law indemnification (Rosado v Proctor & Schwartz,
In this regard, as part of the settlement between plaintiff аnd Dr. Roxland, plaintiff specifically agreed that he would hot assert any claims agаinst Dr. Acevedo and HHC premised upon their vicarious liability for Dr. Roxland’s conduct. This agreement precludes plaintiff from asserting such claims (see, CPLR 2104; General Obligations Law § 15-108 [a]; see also, Wells v Shearson Lehman/American Express,