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Malvica v. Blumenfeld

Court of Appeals of the State of New York
Apr 21, 1971
271 N.E.2d 227 (N.Y. 1971)

Opinion

Argued April 8, 1971

Decided April 21, 1971

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, VINCENT A. LUPIANO, J.

Benjamin H. Siff and Thomas R. Newman for appellant.

Walter F. Wortman, Joel H. Lichtenstein and Stanley Tessel for respondent.


Order affirmed, without costs. The case is governed by Milks v. McIver ( 264 N.Y. 267), the release having been given without reservation at a time when the fact of aggravation of the injury by malpractice was fully known, as the Appellate Division held, and thus is without the ambit of Derby v. Prewitt ( 12 N.Y.2d 100). Contrary to appellant's contention, section 15-105 of the General Obligations Law (formerly Debtor and Creditor Law, § 235) is not applicable. (See Rector of St. James Church v. Cty of New York, 261 App. Div. 614; contra, Berlow v. New York State Thruway Auth., 35 A.D.2d 356 .) Indeed, the same contention was argued and implicitly rejected in Rapp v. Myers ( 291 N.Y. 709).

Concur: Chief Judge FULD and Judges SCILEPPI, BERGAN, JASEN and GIBSON. Judges BURKE and BREITEL concur on constraint of Milks v. McIver ( 264 N.Y. 267).


Summaries of

Malvica v. Blumenfeld

Court of Appeals of the State of New York
Apr 21, 1971
271 N.E.2d 227 (N.Y. 1971)
Case details for

Malvica v. Blumenfeld

Case Details

Full title:VINCENT MALVICA, Appellant, v. EMANUEL BLUMENFELD, Respondent, et al.…

Court:Court of Appeals of the State of New York

Date published: Apr 21, 1971

Citations

271 N.E.2d 227 (N.Y. 1971)
271 N.E.2d 227
322 N.Y.S.2d 249

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