There Ain’t No Such Thing as a Free Lunch

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In an action to recover damages for medical malpractice, etc., the defendant Sandra McCalla appeals an order that granted the plaintiffs’ motion, in effect, to amend an infant compromise order dated August 12, 2014 to eliminate an inadvertent release of McCalla. In Jonathan S., etc., et al. v. Nancy Benjamin, etc., et al., Sandra McCalla, etc., 2019-00330, Supreme Court of New York, Appellate Division, Second Judicial Department (April 21, 2021) McCalla asked that the release be honored and she be released from the litigation.

ZALMA OPINION

A release is a contract. A contract may be changed by exercise of the equitable doctrine of reformation. In this case the parties clearly had no intent to release McCalla since she had independent insurance and was not left in the lurch by the bankruptcy. The trial court reformed the “boiler plate” language to keep McCalla in the suit. Equity was done and the intent of the contract was affirmed and McCalla’s insurer will be compelled to indemnify her for any liability she has to the infant.