Trzaska v. Cincinnati, Inc.

—Order insofar as appealed from unanimously reversed on the law without costs, motion denied and affirmative defenses based upon General Obligations Law § 15-108 reinstated. Memorandum: Plaintiff commenced this action to recover damages for injuries that he sustained in a work-related accident. The injuries occurred when he was setting up a brake machine allegedly manufactured by Cincinnati, Inc. and sold by Pitney Bowes, Inc. (defendants). Cincinnati, Inc. commenced a third-party action against plaintiffs employer. While the third-party action was pending, plaintiff entered into a settlement agreement with his employer. Defendants then were granted leave to amend their answers to assert General Obligations Law § 15-108 as an affirmative defense (see, Ward v City of Schenectady, 204 AD2d 779, 780).

That part of Supreme Court’s order granting plaintiffs motion to dismiss the affirmative defenses based upon General Obligations Law § 15-108 must be reversed. Defendants are entitled to a setoff under General Obligations Law § 15-108 based upon the settlement of plaintiff with his employer. Under the circumstances of this case, plaintiffs employer is a “person! ] liable or claimed to be liable in tort for the same injury” within the meaning of General Obligations Law § 15-108 (a) (see, Madaffari v Wilmod Co., 96 Misc 2d 729, 731).

In Tassone v Haggar Apparel Co. (259 AD2d 1035), relied upon by plaintiff, the plaintiff employee commenced an action to recover damages for personal injuries sustained in a work-related accident. He released his employer from age discrimina*1049tion, wrongful termination and other employment-related claims unconnected to the personal injury action. General Obligations Law § 15-108 (a) did not apply in Tassone because the release was not given to the employer “for the same injury” for which the plaintiff sought recovery (see, Bauman v Garfinkle, 235 AD2d 245). To the extent that our decision in Tassone holds that General Obligations Law § 15-108 does not apply to a settlement between an injured person and his or her employer, it is not to be followed. (Appeals from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Pleading.) Present — Green, J. P., Wisner, Hurlbutt, Scudder and Kehoe, JJ.