Opinion
June 24, 1999.
Appeal from the Supreme Court, Bronx County (Gerald Esposito, J.).
This medical malpractice action arises out of treatment plaintiff received in the emergency room at Harlem Hospital following an automobile accident. Because plaintiff was complaining of pain in his hip, the emergency room physician, Dr. Manuel Acevedo, referred plaintiff for X-rays. Dr. Gary Roxland, a staff radiologist at the hospital, took and interpreted the X-rays and concluded that plaintiff did not have a fracture. Based upon these findings, plaintiff was diagnosed with a deep bruise. It was later determined that plaintiff had in fact fractured his right hip and, as a result of the misdiagnosis, allegedly had to undergo several medical procedures.
Thereafter, this action was commenced against Dr. Acevedo, Dr. Roxland, and the New York City Health and Hospitals Corporation (HHC). The Corporation Counsel appeared and answered on behalf of defendants Dr. Acevedo and HHC. Dr. Roxland retained private counsel and served a separate answer.
After extensive court-supervised negotiations, Dr. Roxland settled plaintiffs claims for $150,000. As part of the settlement, plaintiff executed a general release and agreed, via a separate letter executed by his attorney, that he would not "assert theories of vicarious liability and/or respondeat superior against HHC, Harlem Hospital and/or Acevedo based upon any acts and/or omissions of Gary Roxland, M.D." Neither Dr. Acevedo nor HHC were parties to the settlement.
Thereafter, two months prior to the scheduled trial of this action, Dr. Acevedo and HHC commenced a third-party action against Dr. Roxland seeking contribution and indemnity. A motion for summary judgment by Dr. Roxland ensued. The question presented on this appeal is whether Dr. Roxland, as a settling tortfeasor, is entitled to dismissal of the third-party action pursuant to General Obligations Law § 15-108 (b). Dr. Acevedo and HHC oppose dismissal asserting that the statute does not bar the third-party action since it sounds in indemnity, not contribution. We conclude that, whichever characterization is applied, Supreme Court erred in failing to dismiss the third-party action against Dr. Roxland.
To the extent that the third-party action is seeking contribution, it is statutorily barred since General Obligations Law § 15-108 (b) provides that "[a] release given in good faith by the injured person to one tortfeasor * * * relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules." While it is true that the statute does not extinguish a party's right to seek common-law indemnification ( Rosado v. Proctor Schwartz, 66 N.Y.2d 21, 24-25; McDermott v. City of New York, 50 N.Y.2d 211, 220), Dr. Acevedo and HHC overlook the fact that they can no longer be held vicariously liable for any malpractice committed by Dr. Roxland.
In this regard, as part of the settlement between plaintiff and Dr. Roxland, plaintiff specifically agreed that he would not assert any claims against Dr. Acevedo and HHC premised upon their vicarious liability for Dr. Roxland's conduct. This agreement precludes plaintiff from asserting such claims ( see, CPLR 2104; General Obligations Law § 15-108 [a]; see also, Wells v. Shéarson Lehman/American Express, 72 N.Y.2d 11, 21-22; Calavano v. New York City Health Hosps. Corp., 246 A.D.2d 317, 320). Moreover, plaintiff's failure to formally amend his pleadings to delete such claims does not alter this conclusion since, by his agreement, he has circumscribed the issues to be determined at trial ( see, Deitsch Textiles v. New York Prop. Ins. Underwriting Assn., 62 N.Y.2d 999, 1002). Thus, since Dr. Acevedo and HHC have failed to identify any theoretical underpinning to support the third-party action, summary judgment was warranted.
Concur — Sullivan, J. P., Williams, Rubin, Andrias and Friedman, JJ.