Opinion
August 23, 1982
In a medical malpractice action, the third-party defendant Town of Clarkstown appeals from an order of the Supreme Court, Rockland County (Leggett, J.), entered September 21, 1981, which denied its motion to dismiss the third-party complaint as against it. Order reversed, on the law, with $50 costs and disbursements, and motion to dismiss the third-party complaint as against the town is granted. The Town of Clarkstown reached a settlement with plaintiffs and obtained a release from liability on May 4, 1971. Thereafter, in August, 1977, plaintiffs commenced this action against third-party plaintiff and others. A third-party complaint seeking contribution was served upon the town in April, 1980. The town moved to dismiss the third-party complaint and Special Term denied the motion. We reverse. Where both the date of the accident and the date of the instrument of release were antecedent to Dole v. Dow Chem. Co. ( 30 N.Y.2d 143), the rationale of Dole may not be utilized to prejudice the settling party by exposing him to liability which did not previously exist ( Codling v. Paglia, 32 N.Y.2d 330, 344; Valentino v. State of New York, 44 A.D.2d 338, 341; Burdick v. Pintarelli, 52 A.D.2d 1027; Benzinger v. Wochensky, 59 A.D.2d 652). Damiani, J.P., Titone, Lazer and Gibbons, JJ., concur.