New York Court of Appeals, 1977

Krichmar v. Krichmar

New York Court of Appeals · Decided June 9, 1977

42 N.Y.2d 858; 366 N.E.2d 863; 397 N.Y.S.2d 775; 1977 N.Y. LEXIS 2184

Cases that cite this one

18 later published cases cite this decision.

Cutler v. Travelers Insurance (New York Supreme Court 1989)
Coral Gables Imported Motorcars, Inc. v. Fiat Motors of North America, Inc. (11th Cir. 1982)
Slotkin v. Citizens Casualty Co. of New York (2d Cir. 1980)
Slotkin v. Citizens Casualty Co. (2d Cir. 1979)
Ianielli v. North River Insurance (Appellate Division of the Supreme Court of New York 1986)
Anderson v. ML Real Estate Holdings, LLC (Appellate Division of the Supreme Court of New York 2025)
Goolsby v. City of New York (New York Supreme Court, New York County 2024)
Precious Care Mgt., LLC v. Monsey Care, LLC (Appellate Division of the Supreme Court of New York 2023)
The Roman Catholic Diocese of Rockville Centre, Ne (United States Bankruptcy Court, S.D. New York 2023)
M.M. v. Church of Our Lady of the Annunciation (Appellate Division of the Supreme Court of New York 2022)
Matter of Ruben J. D. (Shante M. v. (Appellate Division of the Supreme Court of New York 2020)
Derago v. Ko (Appellate Division of the Supreme Court of New York 2020)
Mack-cali Realty, L.P. v. Everfoam Insulation Systems, Inc. (Appellate Division of the Supreme Court of New York 2015)
Kimso Apartments, LLC v. Mahesh Gandhi (N.Y. 2014)
Fiakpoey v. Middlesworth (Appellate Division of the Supreme Court of New York 2014)
Fiakpoey v. Middlesworth (Appellate Division of the Supreme Court of New York 2014)
Koufakis v. Siglag (Appellate Division of the Supreme Court of New York 2011)
Cutler v. Travelers Insurance (Appellate Division of the Supreme Court of New York 1990)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Memorandum. The order of the Appellate Division should be reversed, with costs, and the certified question answered in the negative. There was no reservation of rights in the unlimited general release given on May 16, 1968 to the other joint tort-feasors, and, hence, the infant respondent’s parents, against whom this new action has been brought, were discharged from any alleged tort liability on their part (Oliver v Washburn, 46 AD2d 977, affd 39 NY2d 989; Berlow v New York State Thruway Auth., 29 NY2d 949; Milks v Mclver, 264 NY 267). The record does not suggest the existence of mutual *860mistake or any other ground upon which rescission of the release may be granted (see Lucio v Curran, 2 NY2d 157, 161; Frehe v Schildwachter, 289 NY 250, 253; compare Mangini v McClurg, 24 NY2d 556).

This court’s subsequent holding in Gelbman v Gelbman (23 NY2d 434), a case decided January 9, 1969, did not create any new liability which was not encompassed by the general release, but merely removed a judicially created impediment to intrafamilial tort actions. Furthermore, Gelbman (p 439) was deemed retrospectively applicable only to "matters which have not gone to final judgment”. Here the order of compromise authorizing the execution of a general release operated as a final judgment pursuant to CPLR 1207 which provides that an order of compromise, issued upon judicial approval of the settlement of an infant’s claim, as occurred here, "shall have the effect of a judgment”. The unilateral modification on August 26, 1970 of the order of compromise, effected two years following the entry of the original order, does not alter the effect of the original order or the general release executed pursuant to its direction. The release having been given in 1968, section 15-108 of the General Obligations Law (eff Sept. 1, 1972) does not affect the disposition of this case (see Oliver v Washburn, supra).

It should be noted that, procedurally, the Appellate Division affirmed an order denying defendants’ motion to amend their answer to plead a defense of general release. Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division. We do not review their exercise of the discretionary power (Harriss v Tams, 258 NY 229, 240). This appeal from a nonfinal order is here upon a certified question and, generally, "Where the decision could turn, either exclusively or alternatively, on the exercise of discretion, any question of law certified by the Appellate Division could not be considered decisive” (Rosemont Enterprises v Irving, 41 NY2d 829; Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 605). In this case, however, the trial court permitted, and the Appellate Division affirmed, amendment of the defendants’ answer in other respects. Therefore, it may reasonably be concluded that the courts below would have permitted the amendment, in discretion, had they believed the defense available as a matter of law.

Accordingly, the order of the Appellate Division should be *861reversed, with costs, and appellants granted leave to serve an amended answer asserting the defense of general release.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, with costs, and appellants granted leave to serve an amended answer asserting the defense of general release in a memorandum. Question certified answered in the negative.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.