Poli v. Gara

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 NY2d 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 NY2d 330, 344; Valentino v State of New York, 44 AD 2d 338, 341; Burdick v Pintarelli, 52 AD2d 1027; Benzinger v Wochensky, 59 AD2d 652). Damiani, J. P., Titoiie, Lazer and Gibbons, JJ., concur.