Jessica McCarthy, as Administrator of the Estate of Jay F. McCarthy, Plaintiff,
Brian R. Kerrigan, Defendant and Third-Party Plaintiff-Respondent, et al., Defendants; Nathan Wittkop, Third-Party Defendant- Appellant.
Calendar Date: November 12, 2019
O'Neill, O'Brien, Doherty & Kelly, PC, Elmsford
(James M. Skelly of counsel), for third-party
Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan
of counsel), for defendant and third-party
Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.
from an order of the Supreme Court (Farley, J.), entered
March 27, 2018 in St. Lawrence County, which, among other
things, denied third-party defendant's motion for summary
judgment dismissing the third-party complaint.
August 2015, Jay F. McCarthy commenced this action against,
among others, defendant Brian R. Kerrigan and third-party
defendant, Nathan Wittkop, alleging claims of medical and
chiropractic malpractice. In 2016, McCarthy and Wittkop
entered into an arbitration agreement wherein they agreed to
resolve McCarthy's claims insofar as asserted against
Wittkop via arbitration. McCarthy executed a stipulation of
discontinuance in favor of Wittkop but the other defendants
did not sign it. Wittkop thereafter moved for leave to
discontinue the action insofar as asserted against him. In a
July 2016 order, Supreme Court granted the motion and deleted
Wittkop from the caption of the complaint.
died in September 2016, and plaintiff was appointed as the
administrator of his estate. Plaintiff, who was substituted
for McCarthy, served a supplemental summons and amended
complaint against defendants adding a wrongful death cause of
action. Kerrigan then commenced a third-party action against
Wittkop for contribution and common-law indemnification.
After joining issue in the third-party action, Wittkop,
relying on General Obligations Law § 15-108, moved for
summary judgment dismissing the third-party complaint.
Supreme Court, among other things, denied the motion. Wittkop
who is liable or is alleged to be liable in tort and who
receives, in good faith, "a release or a covenant not to
sue or not to enforce a judgment" is "relieve[d]...
from liability to any other person for contribution"
(General Obligations Law § 15-108 [a], [b]). Wittkop
asserts that the stipulation of discontinuance and the
arbitration agreement entered into between him and McCarthy
constitute a release within the meaning of General
Obligations Law § 15-108 and, therefore, Kerrigan cannot
maintain a contribution claim. We disagree. Among the
requirements for a release to fall within the ambit of
General Obligations Law § 15-108 is that "the
plaintiff... receive, as part of the agreement, monetary
consideration greater than [$1]" and "the release
or covenant completely or substantially terminates the
dispute between the plaintiff... and the person who was
claimed to be liable" (General Obligations Law §
15-108[d] , ). The record fails to disclose that
McCarthy received monetary consideration greater than $1, let
alone, any monetary consideration. Contrary to Wittkop's
argument, the amount of costs and expenses expected to be
saved by proceeding through arbitration per the arbitration
agreement does not satisfy the monetary consideration
requirement. Furthermore, the record establishes that, at
most, McCarthy and Wittkop agreed to arbitration. Because the
record does not indicate whether arbitration of the claims
against Wittkop has been completed or even started, we cannot
say that the dispute between plaintiff and Wittkop was
"completely or substantially terminate[d]" (General
Obligations Law § 15-108[d] ). Accordingly, Supreme
Court correctly denied that part of Wittkop's motion
seeking dismissal of the contribution claim.
agree, however, with Wittkop that Supreme Court erred by not
dismissing the third-party complaint to the extent that
Kerrigan alleged a claim for common-law indemnification. In
the bill of particulars, plaintiff alleged various acts of
malpractice by Kerrigan and further alleged that she was not
seeking to hold him vicariously liable for the acts of any
other party. Because the record reflects that plaintiff's
theory against Kerrigan is premised upon acts of malpractice
committed by him, as opposed to Kerrigan being held
vicariously liable for Wittkop's actions, the common-law
indemnification cause of action fails (cf. Grovenger v
Laboratory Procedures, 132 A.D.2d 289, 291-292 ).
P.J., Egan Jr. and Lynch, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as denied third-party
defendant's motion for summary judgment seeking dismissal
of the common-law indemnification cause of action in the
third-party complaint; motion granted ...