Opinion
November 13, 2000.
Appeals from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Pleading.
PRESENT: GREEN, J. P., WISNER, HURLBUTT, SCUDDER AND KEHOE, JJ.
Order insofar as appealed from unanimously reversed on the law without costs, motion denied and affirmative defenses based upon General Obligations Law § 15-108 reinstated.
Memorandum:
Plaintiff commenced this action to recover damages for injuries that he sustained in a work-related accident. The injuries occurred when he was setting up a brake machine allegedly manufactured by Cincinnati, Inc. and sold by Pitney Bowes, Inc. (defendants). Cincinnati, Inc. commenced a third-party action against plaintiff's employer. While the third-party action was pending, plaintiff entered into a settlement agreement with his employer. Defendants then were granted leave to amend their answers to assert General Obligations Law § 15-108 as an affirmative defense ( see, Ward v. City of Schenectady, 204 A.D.2d 779, 780).
That part of Supreme Court's order granting plaintiff's motion to dismiss the affirmative defenses based upon General Obligations Law § 15-108 must be reversed. Defendants are entitled to a setoff under General Obligations Law § 15-108 based upon the settlement of plaintiff with his employer. Under the circumstances of this case, plaintiff's employer is a "person liable or claimed to be liable in tort for the same injury" within the meaning of General Obligations Law § 15-108 (a) ( see, Madaffari v. Wilmod Co., 96 Misc.2d 729, 731).
In Tassone v. Haggar Apparel Co. ( 259 A.D.2d 1035), relied upon by plaintiff, the plaintiff employee commenced an action to recover damages for personal injuries sustained in a work-related accident. He released his employer from age discrimination, wrongful termination and other employment-related claims unconnected to the personal injury action. General Obligations Law § 15-108 did not apply in Tassone because the release was not given to the employer "for the same injury" for which the plaintiff sought recovery ( see, Bauman v. Garfinkle, 235 A.D.2d 245). To the extent that our decision in Tassone holds that General Obligations Law § 15-108 does not apply to a settlement between an injured person and his or her employer, it is not to be followed.