Opinion
January 27, 1994
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
The IAS Court properly determined that the pre-verdict "high-low" agreement between plaintiffs and third-party plaintiff general contractor, by which third-party plaintiff guaranteed plaintiffs a minimum payment of $400,000 in exchange for plaintiffs' promise not to enforce any judgment in excess of $800,000 against it, was a release within the meaning of General Obligations Law § 15-108 barring any claim for contribution by third-party plaintiff against third-party defendant (see, Williams v. Niske, 81 N.Y.2d 437, affg 181 A.D.2d 307; Reynolds v Morka Enters., 82 A.D.2d 199, lv denied in part and dismissed in part 55 N.Y.2d 857), notwithstanding that the agreement did not contain an express statement of release (see, Gonzales v. Armac Indus., 81 N.Y.2d 1). Moreover, plaintiffs are not aggrieved parties (CPLR 5511) with standing to appeal from the dismissal of the third-party claim for contribution against the injured plaintiff's employer (see, Rogers v. Huggins, 106 A.D.2d 621, 622). Since third-party plaintiff's right to contribution could not arise until it had actually paid more than its equitable share of plaintiffs' damages (see, Klinger v. Dudley, 41 N.Y.2d 362), and since, by reason of its settlement with plaintiffs, third-party plaintiff's liability to plaintiffs was limited to an amount less than its equitable share as determined by the jury, third-party plaintiff's purported assignment of its claim for contribution to plaintiff was a nullity, there being no claim to assign. And even if there were a claim to assign, we question whether the exclusivity provisions of the Workers' Compensation Law could be circumvented in this way (see, Gonzales v. Armac Indus., supra, at 8-9).
We have reviewed plaintiffs' other arguments and find them to be without merit.
Concur — Murphy, P.J., Rosenberger, Ross, Rubin and Williams, JJ.