Hyperlawhypertext legal databasebeta Malvica v. Blumenfeld 28 N.Y.2d 851

← Cases

Malvica v. Blumenfeld

28 N.Y.2d 851 Court N.Y. Decision date 1971-04-21 English

Contents

Majority

p. 851
Vincent Malvica, Appellant, v. Emanuel Blumenfeld, Respondent, et al., Defendants.
Argued April 8, 1971;
decided April 21, 1971.
p. 852
Benjamin H. Siff and Thomas R. Newman for appellant.
Walter F. Wortman, Joel II. Lichtenstein and Stanley Tessel for respondent.

Order affirmed, without costs. The case is governed by Milks v. McIver ( 264 N. Y. 267 ), the release having been given without reservation at a time when the fact of aggravation of the injury by malpractice was fully known, as the Appellate Division held, and thus is without the ambit of Derby v. Prewitt ( 12 N Y 2d 100 ). Contrary to appellant’s contention, section 15-105 of the General Obligations Law (formerly Debtor and Creditor Law, § 235) is not applicable. (See Rector of St. James Church v. Cty of New York, 261 App. Div. 614 ; contra, Berlow v. New York State Thruway Auth., 35 A D 2d 356 .) Indeed, the same contention was argued and implicitly rejected in Rapp v. Myers ( 291 N. Y. 709 ).

Concur: Chief Judge Fuld and Judges Scileppi, Bergan, Jasen and Gibson. Judges Burke and Breitel concur on constraint of Milks v. McIver ( 264 N. Y. 267 ).

Cases cited