Opinion
# 2017-018-826 Claim No. 110095 Motion No. M-90007
07-31-2017
DENNIS BURLINGAME and CITY OF SYRACUSE v. STATE OF NEW YORK
KUEHNER LAW FIRM, PLLC By: Kevin P. Kuehner, Esquire (For: Dennis Burlingame) CITY OF SYRACUSE CORPORATION COUNSEL By: Joseph E. Fahey, Esquire Amanda R. Harrington, Esquire (For: City of Syracuse) ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Maureen A. MacPherson, Esquire Assistant Attorney General
Synopsis
Release of individual doctor in Supreme Court action did not release State in this Court for vicarious liability based upon ambiguity and intent of parties to release.
Case information
| UID: | 2017-018-826 |
| Claimant(s): | DENNIS BURLINGAME and CITY OF SYRACUSE |
| Claimant short name: | Burlingame |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 110095 |
| Motion number(s): | M-90007 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | KUEHNER LAW FIRM, PLLC By: Kevin P. Kuehner, Esquire (For: Dennis Burlingame) CITY OF SYRACUSE CORPORATION COUNSEL By: Joseph E. Fahey, Esquire Amanda R. Harrington, Esquire (For: City of Syracuse) |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Maureen A. MacPherson, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 31, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion seeking an Order dismissing the claim pursuant to CPLR 3211 (a) (1), (5) and (7) and CPLR 3212 or, in the alternative, permission to amend its answer pursuant to CPLR 3025 (b), to add an affirmative defense under General Obligations Law section 15-108 (a) for a monetary offset for Claimants' settlement of other actions. Both Claimants oppose the motion.
On December 27, 2001, Claimant Burlingame, a City of Syracuse police officer, was on duty when he was injured in a motor vehicle accident. Due to the severity of his injuries, he was transported by ambulance to the State of New York, Upstate Medical University Hospital (hereinafter Upstate). Claimant was treated at Upstate by Dr. Dwight A. Webster, Jr., and surgery was performed on his "closed femur fracture." Dr. Webster performed an "internal fixation." Claimant alleges that the operation was negligently performed in that his fracture was set leaving a "30 degree torsional rotation" of the femur requiring additional surgery. Claimant Burlingame was out of work for an extended period of time due to his injuries, and he received disability payments from the City of Syracuse for lost wages and medical expenses in accordance with General Municipal Law section 207-c.
Defendant's Exhibit A, ¶12.
Defendant's Exhibit B, ¶8.
Defendant's Exhibit B, ¶26.
In November 2004, Claimant brought an action against Defendant seeking damages for the alleged medical malpractice. On October 10, 2008, the City of Syracuse was permitted to intervene in this action to recoup the money it expended for wages and medical expenses in accordance with General Municipal Law section 207-c (6). Claimant also sued the other driver in the motor vehicle accident, Marissa Williams, and Dr. Webster, individually, in Supreme Court, Onondaga County. City of Syracuse intervened in the action against Marissa Williams and brought its own separate action against Dr. Webster. All of these other actions have now been settled.
City of Syracuse brought a late claim application and motion to intervene for permission to file a late claim. The application to file a late claim was granted, and after appeal to the Appellate Division, Fourth Department, the City was also allowed to intervene in this action.
Claimant Burlingame signed an undated release with Marissa Williams, and in June 2009, the City also executed a release with Ms. Williams in a confidential settlement (hereinafter Williams' releases). In May 2008, both Claimants Burlingame and City of Syracuse executed a release with Dr. Webster as part of a confidential settlement (hereinafter Webster release). The 2009 Williams' release from the City of Syracuse and the Webster release were provided to the Court for in camera review. Claimant Burlingame's undated Williams' release is Exhibit E attached to Defendant's motion. It is these releases which are the subject of Defendant's motion.
The City provided this release in camera.
The State's Exhibit G.
Defendant makes two arguments for dismissal of the claim based upon these releases: the language in the releases released all other tortfeasors, implicitly including the State, and/or the release to Dr. Webster is effectively res judicata to the claims against the State in this action. Counsel for Defendant avers that she first saw the release in the action against Ms. Williams on January 31, 2017, and she saw the Webster release on an unspecified date in 2016.
Assistant Attorney General's Supporting Affirmation ¶11.
Claimants argue that the releases were never intended to release the State of New York in the Court of Claims action. The releases were only given to Ms. Marissa Williams and Dr. Dwight A. Webster and were only intended to release those parties. Neither release references the State of New York or University Hospital. Claimants argue the State was not a party to the settlement, provided no consideration, and the theories of liability against the State are different, even from those in the Supreme Court action against Dr. Webster. Claimant City of Syracuse also argues that it will be prejudiced by the late assertion of release as a defense. Claimant Burlingame relies upon this Court's Decision and Order in Ellithorpe v State of New York, 15 Misc 3d 116 [A] [Ct Cl 2007], to support his argument that where an action against a negligent employee is settled and the action discontinued against the employee, recovery can still be obtained based upon the employer's vicarious liability.
General Obligations Law section 15-108 (a), provides in pertinent part:
"[w]hen a release...is given to one of two or more persons liable or claimed to be liable in tort for the same injury, . . . it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, . . . ."
The statute does not require that every tortfeasor or party be specifically identified (Wells v Shearson Lehman/American Express, 72 NY2d 11, 21-22 [1988]; Koufakis v Siglag, 85 AD3d 872, 873 [2d Dept 2011]). Who is released and the extent of the release must be determined under the established principles of contract law (Mangini v McClurg, 24 NY2d 556, 562 [1968]). A release, like any contract, must be construed by the plain language of the agreement and unless that language is ambiguous, the intent of the parties must be discerned from the words used in the agreement without looking to any extrinsic evidence (Abdulla v Gross, 124 AD3d 1255, 1256 [4th Dept 2015]; Koufakis, 85 AD3d at 873). Yet, the release must be considered in context with reference to the matter being settled (Matter of Schaefer, 18 NY2d 314, 317 [1966]) and "the purpose for which the release was executed"; it should be construed "as a whole and in light of its stated purpose" (Corzatt v Taylor, 126 AD3d 1505, 1505-1506 [2015]). "[A] release may not be read to cover matters which the parties did not desire or intend to dispose of" (Bugel v WPS Niagara Props., Inc., 19 AD3d 1081, 1082 [4th Dept 2005], quoting Metz v Metz, 175 AD2d 938, 939-940 [3d Dept 1991]).
The Court, in reviewing the two releases identified, rejects Defendant's argument that the Williams' releases effectively released the State of New York. The Williams' releases limit the persons and entities released to the Williams' "heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable." The State of New York does not fall within the specified releasees and, therefore, the release does not extend to the State of New York.
See Defendant's Exhibit E and City of Syracuse confidential submission.
It is the release given to Dwight A. Webster, M.D., who was sued individually on allegations of negligence, almost identical to the allegations of negligence alleged against the State of New York in the claim, despite different theories of negligence, which presents a more difficult issue. That release effectuating the settlement with Dr. Webster, is entitled a "General Release" and provides that Dennis Burlingame and the City of Syracuse, as releasors and with consideration received from Dwight A. Webster, MD, as releasee, releases and discharges Dwight A. Webster, M.D.:
The specifics of the consideration for the release will not be specified as the settlement was confidential.
"[t]he RELEASEES, RELEASEE'S heirs, executors, administrators, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts reckonings, bonds, bills, specialities, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, which against the RELEASEES, the RELEASOR, RELEASOR'S heirs, executors, administrators, successors and assigns ever had, now have or hereafter can, shall or may have for, upon, or by reason of any matter cause or thing whatsoever from the beginning of the world to the day of the date of this RELEASE, and specifically for dates of treatment on or about December 2001 through July 1, 2003.
This settlement constitutes complete payment for all damages and injuries. This release is specifically intended to release the named releasees, and also is specifically intended to release, whether presently known or unknown, all other tort feasors [sic] liable or claimed to be liable jointly and/or severally with the said releasees; and, whether presently known or unknown, all other potential or possible tort feasors [sic] liable or claimed to be liable jointly and/or severally with the said releasees.
It is further agreed by and between the parties that this settlement is confidential and shall not be made public in any way.
It is further agreed by and between the parties that this settlement does not constitute an admission of negligence or medical malpractice on the part of the defendant.
It is further agreed by and between the parties, and releasor represents and acknowledged that there are no outstanding liens. Releasor further agrees to hold harmless releasee and releasee's insurance company, Academic Health Professionals, from any and all liens, encumbrances, or claims of equitable subrogation, known or unknown.
The words, 'RELEASOR' and RELEASEE' include all releasors and all releasees under this RELEASE.
This RELEASE may not be changed orally."
Although, in reading the release, the initial paragraph extends to only Dwight A. Webster, M.D., his heirs, executors, administrators, successors and assigns, which like the Williams' releases, would not include the State of New York; the second paragraph, however, purports to extend the release beyond the named releasee, Dwight A. Webster, M.D., and provides that it is "specifically intended to release , whether presently known or unknown, all other tort feasors [sic] liable or claimed to be liable jointly and/or severally with the said releasees ; and whether presently known or unknown, all other potential or possible tort feasors [sic] liable or claimed to be liable jointly and/or severally with the said releasees." By this second paragraph, the release seems to clearly "also" include the State of New York as a "tort feasor [sic] claimed to be liable jointly and/or severally" with Dr. Webster. The release then goes on to provide that the parties to the settlement agree that it "does not constitute an admission of negligence or medical malpractice on the part of the defendant ." There is no reference or indication who the defendant is, despite the broad language of the release, releasing Dr. Webster and known and unknown, potential or possible tortfeasors jointly or severally liable or claimed to be liable for treatment from December 2001 through July 1, 2003. Waiving the negligence or medical malpractice of an unnamed singular defendant where the release language extends to release any number of individual or other entities, that are or could be tortfeasors presents an ambiguity (Camperlino v Bargabos, 96 AD3d 1582 [4th Dept 2012] [specific recitals to a specified action followed by omnibus general release creates ambiguity]; Krysty v Town of Royalton, 19 AD3d 1086, 1087 [4th Dept 2005] [ release purports to discharge unknown persons and then denies fault on their behalf]; see also Wells, 72 NY2d at 23).
With evidence of an ambiguity in the language of the release, the Court must look to extrinsic evidence to discern the parties' intent. Counsel for both Claimants aver that there was never any intention to release the State of New York from vicarious liability for the alleged negligence of its employee, Dr. Webster. Claimant Burlingame also submits the affirmation of attorney Matthew J. VanBeveren, the attorney for Dr. Webster in the Supreme Court action, Burlingame and City of Syracuse v Dwight A. Webster, M.D., Index No. 2005-0761. Attorney VanBeveren affirms that he prepared the Webster release and in doing so represented only the interests of his client, Dr. Webster. He also affirms that there was no intent, by any of the parties, to the release to release the State of New York from liability. The singular defendant was intended to refer solely to Dr. Webster, the only defendant in the unreferenced Supreme Court action, and the only defendant to provide any consideration for the release.
Exhibit A, attached to Kuehner Affirmation.
Although, a misunderstanding by one party as to the language of a release does not avoid its consequences (see Abdulla, 124 AD3d at 1257; Matter of Brooklyn Resources Recovery, 309 AD2d 931 [2d Dept 2003]), here, the release itself presents an ambiguity, and the intention of all of the parties to the release was to limit the release to only Dr. Webster, and not to release the State from liability. Although, certainly, the better course would have been to limit the release to the named Supreme Court action, and explicitly exclude the State from the releasees, the claims should not be dismissed given the undisputed intention of the parties based upon Claimants' submissions.
Moreover, the State should not be allowed to benefit at this juncture as an unintended beneficiary of the release to Dr. Webster. Claimant Burlingame has had a pending claim since November, 2004, and Claimant City of Syracuse filed its claim on April 19, 2006. The action has been scheduled for trial on October 19 through October 30, 2015, February 22, 2016 through March 4, 2016, and February 6, 2017 through February 17, 2017. For each of the scheduled trial dates, the matter was adjourned at the request of all the parties with the understanding that they were working diligently toward settlement. The State acknowledges that it knew of the Webster release in 2016, yet did not move to dismiss or move to amend its answer until this motion was filed on February 14, 2017, after the third trial date had passed.
Defendant is also not entitled to dismiss the claim based upon res judicata. The doctrine of res judicata provides that where a court of competent jurisdiction has entered a judgment on the merits, that judgment is "conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatian Home Invs. Corp., v Lopez, 46 NY2d 481, 485 [1979]). The settlement and release in the Supreme Court case against Dr. Webster did not result in a final judgment, and there was no admission or finding of negligence or medical malpractice, accordingly, res judicata does not apply to bar this claim from going forward (Raab v Kaleida Health, 60 AD3d 1380 [4th Dept 2009]; Fuentes v Brookhaven Memorial Hosp., 10 AD3d 384 [2d Dept 2004]; Ott v Barash, 109 AD2d 254 [2d Dept 1985]; Ellithorpe v State of New York, 15 Misc 3d 116 [A]).
Defendant also makes a motion for permission to amend its answer pursuant to CPLR 3025 (b) to assert an affirmative defense of offset for the settlements based upon General Obligations Law 15-108. Claimants do not oppose the motion. Accordingly, as that defense has merit, and Claimants are not prejudiced or surprised by the assertion of the defense, Defendant is granted permission to amend its answer (Ward v City of Schenectady, 204 AD2d 779 [3d Dept 1994]).
Accordingly, based upon the foregoing, Defendant's motion is DENIED in part and GRANTED in part as set forth herein.
July 31, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 3) Defendant's Memorandum of Law. 4) Affirmation of Kevin P. Kuehner, Esquire, in opposition, with exhibit attached thereto. 5) Affirmation of Amanda R. Harrington, Esquire, Assistant Corporation Counsel, in opposition, with exhibits attached thereto.