Mei Ling Yi v Enterprise Rent A Car

[*1] Mei Ling Yi v Enterprise Rent A Car 2004 NY Slip Op 51717(U) Decided on October 7, 2004 Supreme Court, Queens County Golia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2004
Supreme Court, Queens County

MEI LING YI, Plaintiffs,

against

ENTERPRISE RENT A CAR, et al., Defendants.



18553/99

Joseph G. Golia, J.

Defendant Enterprise Rent A Car and defendant Elrac, Inc. have moved for, inter alia, an order pursuant to CPLR 3211(a)(5) dismissing the action against them on the ground of release.

On or about January 1, 1999, defendant Enterprise Rent A Car and defendant Elrac, Inc. allegedly owned a motor vehicle which they rented to defendant Bobbi Borras. Defendant Annette Borras operated the motor vehicle on a road known as SR 80 in the vicinity of Lewis Township, Pennsylvania. The motor vehicle struck an embankment, allegedly injuring plaintiff Mei Ling Yi, who was riding as a passenger. This action ensued. Because the rental agreement named defendant Bobbi Borras as the only permissible driver, defendant Elrac reserved its right of indemnification [*2]against the Borras defendants, and separate attorneys represented them in this action.

On June 5, 2000, plaintiff Mei Ling Yi settled this action against the Borras defendants for $100,000, and she executed a release which reads in relevant part: "For the sole consideration of One Hundred Thousand ($100,000.xx) Dollars *** the undersigned hereby releases and forever discharges Roberta Borras, Annette J. Borras, & Chrysler Credit Corporation *** and all other persons, firms or corporations liable or who may be claimed to be liable *** from any and all claims, demands, damages, actions, causes of action or suits or any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred ***." The plaintiff alleges that the Borras defendants prepared the release and that it was never her intention to release the movants. The plaintiff subsequently filed a stipulation of discontinuance in this action dated June 28, 2000 excluding defendant Enterprise and defendant Elrac.

Summary judgment is warranted where, as in the case at bar, there is no issue of fact which must be tried. (See, Alvarez v. Prospect Hospital, 68 NY2d 320.) General Obligations Law § 15- 108(a) states in relevant part that "[w]hen a release * * * is given to one of two or more persons liable or claimed to be liable in tort for the same injury * * * it does not discharge any of the other tortfeasors from liability for the injury * * * unless its terms expressly so provide." (See, Wells v. Shearson Lehman/American Exp., Inc., 72 NY2d 11.) However, the release need not specifically name or specifically identify the discharged parties if the expressed intent is clear. (See, Wells v. Shearson Lehman/American Exp., Inc., supra.) "It is the mutual intention of the parties which determines whether release of one wrongdoer releases all wrongdoers **** even wrongdoers whose liability is only vicarious ***." (Starr v. Johnsen, 143 AD2d 130, 132; see, Plath v. Justus, 28 NY2d 16.) In the case at bar, the plaintiff failed to raise a genuine issue of fact concerning the intent of the release which she executed. (See, Creary v. Davie, 188 AD2d 1033.) The document executed by plaintiff Mei Ling Yi plainly releases the Borras defendants, the Chrysler Credit Corporation "and all other persons, firms or corporations liable or who may be claimed to be liable" for injuries resulting from the accident. The moving defendants "may be claimed to be liable" to plaintiff Mei Ling Yi pursuant to section 388 of the Vehicle and Traffic Law, which in substance makes the owner of a vehicle liable for the negligence of an operator using the vehicle with permission. (See, [*3]Perrin v. Chase Equipment Leasing, Inc., 9AD3d 839; Litvak v. Fabi, 8 AD3d 631.) Tamayo v. Ford Motor Titling Trust (284 AD2d 529 [Second Department]), relied upon by the movants, is dispositive. In that case, a passenger in a motor vehicle accident executed a release in favor of the driver which, as in the case at bar, provided that it covered "all other persons, firms or corporations liable or, who might be claimed to be liable." The Appellate Division, Second Department, held that the release barred an action against the owner of the vehicle because "the language of the release was intended to expressly provide for the release of the appellant as the owner of the vehicle."

Accordingly, that branch of the motion by defendant Enterprise Rent A Car and defendant Elrac, Inc. which is for an order pursuant to CPLR 3211(a)(5) dismissing the action against them on the ground of release is granted. The remaining branches of the motion are denied as moot.

Short form order signed herewith.

_____________________________

J.S.C.