Opinion
39314/03.
Decided February 17, 2005.
Upon the foregoing papers, William J. Shaw, Jr. moves, pursuant to CPLR 3212, to dismiss the complaint on the grounds that this action has been settled. Plaintiff Jean Santo cross-moves for an order granting her leave to serve a proposed second amended complaint.
This is an action for personal injuries allegedly sustained by plaintiff on December 26, 2002 as a result of a slip and fall on ice on the driveway curb cut located at 656 90th Street in Brooklyn, New York; property owned by William J. Shaw, Jr. at the time of the accident. The original complaint, dated October 8, 2003, alleges that plaintiff was forced to walk off the sidewalk and onto the driveway lip because a motor vehicle owned by defendant William J. Shaw, Jr. was improperly parked upon the sidewalk. Thus, the complaint alleges that defendant William Shaw, father of William Shaw Jr. and alleged owner of the property, failed to clear or negligently cleared the accumulation of ice from his property, and was negligent in allowing his tenant to park on the sidewalk. The complaint also alleges that William Shaw, Jr. negligently parked his car on a public sidewalk.
Attorneys engaged by Geico Insurance Company, William Shaw Jr.'s motor vehicle insurer, joined issue solely on his behalf as owner of the motor vehicle. The answer denied that Mr. Shaw Jr.'s father owned the subject property. William Shaw did not interpose an answer.
Thereafter, on or about November 4, 2003, plaintiff was advised that William Shaw was deceased. Accordingly, on or about January 7, 2004, plaintiff filed an amended summons and complaint, alleging that William Shaw, Jr. owned the subject property on the date of the accident and that his father was the former owner thereof. By verified answer to the amended complaint, William Shaw, Jr. denied these allegations.
On or about May 22, 2004, plaintiff signed a Conditional Release, dated May 22, 2004, which discharged William Shaw Jr. as "owner and operator" of the motor vehicle involved in the accident "under Geico Insurance Company Policy Claim Number 0007963500101029" but, in a separate paragraph, reserved "her right under the General Obligation Law of the State of New York, Section 15-108, her claim against William J. Shaw, Jr. as the owner of the premises at 656 90th Street, Brooklyn, New York, under the Traveler's Insurance Company Claim Number: L8D 1152." A Limited Stipulation of Discontinuance was also negotiated and contains the same limitation as does the Conditional Release.
By stipulation dated June 17, 2004, plaintiff agreed to discontinue her claims against William Shaw.
Motion to Dismiss
In support of his motion, William Shaw Jr. argues that the case has been settled by virtue of the Conditional Release executed by plaintiff on May 22, 2004 and the demand for payment made by plaintiff to Geico pursuant to CPLR 5003-a.
"It is well settled that a release is a contract and is subject to the laws governing contracts" ( In re Frankel, 292 AD2d 526, appeal denied, 98 NY2d 615, citing Mangini v. McClurg, 24 NY2d 556). "Where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement" ( Kaminsky v. Gamache, 298 AD2d 361). In this regard, while "[a] general release should be interpreted to release the clams specifically bargained for and all claims reasonably related to the bargained items (19A NY Jur, Compromise, Accord, and Release, § 86), "if the language of a release, or other circumstances, indicate that the release is limited to particular claims, it will be applied only to those claims, and will not release others" ( id., Kaminsky, 298 AD2d at 361, quoting Perritano v. Town of Mamaroneck, 126 AD2d 623, 624, quoting 49 NY Jur, Release and Discharge, § 33 at 405 ["'"if from the recitals therein or otherwise, it appears that the release is to be limited to only particular claims, demands or obligations, the instrument will be operative as to those matters alone."'"]. Stated otherwise "[a] release may not be read to cover matters which the parties did not intend to cover" ( Kaminsky, 298 AD2d at 361; see also 815 Park Ave. Owners, Inc. v. Metzger, 250 AD2d 471 [releases exchanged by parties in residential cooperative corporation's action for maintenance arrearages did not obviate recovery of attorney fees for related litigation involving same parties; stipulation contained nothing which operated to relinquish claims for attorney's fees arising out of litigation]; Record v. Royal Globe Ins. Co., 83 AD2d 154, 158-159 [release not general where it was limited to wife's cause of action for conscious pain and suffering and the husband's derivative cause of action for the loss of his wife services, and did not include plaintiffs' cause of action for extended economic loss]).
Here, the Limited Stipulation of Discontinuance and the Conditional Release discharged plaintiff's claim against William Shaw Jr. as a vehicle owner under his Geico insurance policy, but clearly and explicitly reserved plaintiff's claim against him as owner of the property where the accident occurred, under Mr. Shaw Jr.'s Traveler's home insurance policy. As such, the Limited Stipulation of Discontinuance and the Conditional Release is only operative as to the claim against Mr. Shaw Jr. as vehicle owner ( Kaminsky, 298 AD2d at 361; 815 Park Ave. Owners, Inc., 250 AD2d at 471; Record, 83 AD2d at 158-159). Moreover, as plaintiff properly argues, if the release had been intended to cover all claims against Mr. Shaw Jr., the limiting language, set forth in bold capital letters in the Conditional Release and in capital letters in the Stipulation of Discontinuance, would have been unnecessary ( see Record, 83 AD2d at 160-161[had the parties intended that the release at bar operate as a general release of any and all claims which the Records (plaintiffs) may have had against Mr. Steppe (defendant) arising out of the accident, then there would have been no need for the addition of the typewritten limitation to the "boiler-plate" provision of the "Blumberg" standard form]).
Mr. Shaw Jr. argues that since this matter only involves one accident and one claim of negligence for which money damages are sought, the Conditional Release settled the action, and that the many different ways in which he was allegedly negligent does not convert one defendant into two tortfeasors, or one claim into multiple claims. To the extent Mr. Shaw Jr. is arguing that denial of the motion would impermissibly allow plaintiff to engage in claim splitting, "'[t]he rule prohibiting claim splitting prohibits two actions on the same claim or parts thereof'" ( Lazides v. Kouzounas, 7 AD3d 676). This rule, however, "does not apply where, as here, the parties have agreed to split the claim by settling only part of the dispute between them" ( Charles E.S. McLeod, Inc. v. R.B. Hamilton Moving and Storage, 89 AD2d 863). To the extent Mr. Shaw Jr. asserts denial of the motion would violate the judicial policy which precludes a double recovery for an injury ( Lucio v. Curran, 2 NY2d 157, 162), the court does not concur. In this regard, "the parties' settlement [does not] afford any basis for determining what, if any, elements of damages were considered by them in arriving at the settlement figure of [$25,000]" ( Ott v. Barash, 109 AD2d 254, 263-265). Thus, there is no basis "for determining the total amount of plaintiff's loss and the extent to which she has been compensated therefor by reason of her settlement," and thus "there is no rational basis for applying the prohibition against double recovery" ( id.). In any event, no double recovery has yet occurred since plaintiff has only received $25,000 pursuant to the release discharging Mr. Shaw Jr. as "owner and operator" of the motor vehicle involved in the accident, and has not received any payment for damages resulting from his alleged negligence as homeowner.
In addition, even assuming that General Obligations Law § 15-108 is inapplicable to this case, as plaintiff notes, the reference to this statute in the Conditional Release and the Limited Stipulation of Discontinuance does not operate to relinquish the explicit intention of the parties to limit the release to the negligence relating to Mr. Shaw Jr.'s ownership of his motor vehicle. In addition, plaintiff's CPLR 5003-a demand for payment of the settlement sum (in order to avoid judgment being entered with interest thereon) fails to demonstrate that the Conditional Release was not limited.
CPLR 5003-a, entitled, "Prompt payment following settlement," provides: (a) When an action to recover damages has been settled, any settling defendant, except those defendants to whom subdivisions (b) and of this section apply, shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff.
Finally, the court notes that "[w]here, as here, the language of a release is clear and unambiguous, the signing of a release is a 'jural act' binding on the parties" ( Booth v. 3669 Delaware, Inc., 92 NY2d 934, 935). "Therefore, consistent with the public policy favoring enforcement of settlements . . . the release plaintiff signed should be enforced according to its [limited] terms ( id). In view of the foregoing, the motion is denied. In light of this determination, the court grants the cross motion of plaintiff to amend and serve the proposed second amended complaint (CPLR 3025[b]).
The foregoing constitutes the decision and order of the court.