GERARD ANTHONY POLLICINA, AS ADMINISTRATOR &C. OF BARBARA ANN POLLICINIA,
DECEASED, RESPONDENT, v. MISERICORDIA HOSPITAL MEDICAL CENTER, ET
AL.,DEFENDANTS, AND HOSPITAL OF THE ALBERT EINSTEIN COLLEGE OF MEDICINE,
APPELLANT.
82 N.Y.2d 332, 624 N.E.2d 974, 604 N.Y.S.2d 879 (1993).
November 18, 1993
1 No. 228 (1993 NY Int. 232)
Decided November 18, 1993
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Nancy Ledy Gurren, for Appellant.
Fred R. Profeta, Jr., for Respondent.
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TITONE, J.:
In this medical malpractice action against multiple defendants,
plaintiff has recovered a judgment for wrongful death and has been
awarded damages, as reduced by the trial court and affirmed by the
Appellate Division, in the amount of $2.2 million against the only
non-settling defendant, Albert Einstein College of Medicine
(Einstein). The primary issue in this case, as in the companion cases
(Didner v Keene Corp., __ NY2d __; Dudick v Keene Corp., __ NY2d __
(both decided herewith)), is the proper method for computing the set
off required by General Obligations Law § 15-108(a) where two or more
defendants have settled with the plaintiff before entry of judgment.
Unlike the companion cases, this appeal presents an additional
question: whether the approval of the Surrogate's Court is necessary
to render a settlement in a wrongful death action final and binding.
I.
Before the verdict was announced, two of the defendants, Drs. Mancuso
and Allen, settled collectively for the sum of $1.1 million, and
defendant Dr. Sandor settled for $650,000. Another defendant,
Misericordia Hospital Medical Center (Misericordia), settled with
plaintiff for $50,000. Only defendant Einstein's liability remained to
be determined by the jury. The jury's apportionment of the fault in
this case -- a factual determination which the Appellate Division has
affirmed (158 AD2d 195) -- was 25% ($550,000) against Einstein, 25%
($550,000) against defendants Dr. Mancuso and Dr, Allen, and 50%
SNIPPETS:
In this medical malpractice action against multiple defendants, plaintiff has recovered a
The primary issue in this case, as in the companion cases (Didner v Keene Corp., __ NY2d __;
this appeal presents an additional question: whether the approval of the Surrogate's Court is
Another defendant, Misericordia Hospital Medical Center, settled with plaintiff for $50,000.
Since the jury's apportionment of fault differed from the amounts that the settling
As we stated in Didner v Keene Corp. (supra), a settlement entered into or memorialized in
This argument is predicated on the assumption that under EPTL § 5-4.6 the approval of the
Co., 62 AD2d 810, affd 48 NY2d 662), precludes application of General Obligations Law §
As drafted both before and after its 1992 revisions, that statute clearly and unequivocally
Upon application of an administrator appointed under 5-4.1 or a personal representative to
The current version is the same except for the addition of a proviso authorizing a "transfer
It is difficult to imagine a clearer expression of the Legislature's intention to leave the
Moreover, even if there had been a contrary legislative intention to transfer authority to
Further, "f the legislature shall create new classes of actions and proceedings, the supreme
Indeed, the specific question of the relationship between the power of Supreme Court and
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