BURDICK v. PINTARELLI

Appeal by the third-party defendant from an order of the Supreme Court at Special Term, entered October 2, 1975 in Rensselaer County, which denied a motion to dismiss the third-party complaint. The present action arises out of an automobile accident which occurred on February 6, 1971. Plaintiff was a passenger in an automobile owned and being operated by Frank Taylor, the third-party defendant's testate, which was in collision with a vehicle owned by defendant and third-party plaintiff Gilbert Stores, Co., Inc., and operated by defendant third-party plaintiff Tony Pintarelli. On March 2, 1972 plaintiff entered into a settlement agreement with a covenant not to sue with the representative of Taylor's estate and, thereafter, commenced the present action alleging active negligence on the part of the defendants. The defendants brought a third-party action against the estate of Taylor. The third-party defendant moved to dismiss the complaint in such action on the grounds that the settlement agreement and covenant not to sue precluded the third-party plaintiff from seeking indemnification or contribution. Special Term denied the motion and this appeal ensued. In Jordan v County of Schoharie ( 46 A.D.2d 716) and Valentino v State of New York ( 44 A.D.2d 338) we considered the precise issue presented on this appeal, and, relying on Codling v Paglia ( 32 N.Y.2d 330, 344), we held that the decision of Dole v Dow Chem. Co. ( 30 N.Y.2d 143) should not be retroactively applied to a pre- Dole settlement and covenant not to sue entered into between an injured party and one of two potential joint tort-feasors. Thus, Special Term improperly denied the motion to dismiss the third-party complaint and the order must be reversed. Order reversed, on the law and the facts, and motion to dismiss the third-party complaint granted, with costs. Greenblott, J.P., Sweeney, Main, Larkin and Reynolds, JJ., concur.