The following electronically filed documents read on this motion by defendant HOME DEPOT U.S.A., INC. (Home Depot) for an Order pursuant to CPLR 3215(a)(5) and General Obligations Law 15-108(b), dismissing the cross-claim asserted against Home Depot and for attorney’s fees payable by co-defendant under Rule 130 for the costs of making the instant motion, through a hearing to determine the amount of fees owed to defendant; and on this cross-motion by co-defendant SUSAN M. FINER (Finer) for an Order pursuant to CPLR 3124, compelling Home Depot to provide a copy of the General Release dated January 11, 2021, regarding the settlement between Home Depot and plaintiff and pursuant to CPLR 22 NYCRR 216.1, unsealing the Settlement Agreement and General Release dated January 11, 2021, filed under seal and annexed to Home Depot’s motion: Papers Numbered Notice of Motion-Affirmation-Exhibits EF 17-27 Notice of Cross-Motion-Affirmation-Exhibits EF 30-36 Affirmation in Reply & in Opposition to Cross-Motion EF 37 This is an action to recover damages for personal injuries allegedly sustained by plaintiff on July 7, 2019 as a result of a dog bite that occurred while he was shopping at the Home Depot located in College Point, New York. Finer was the owner of the dog. Plaintiff commenced this action by filing a summons and verified complaint on July 7, 2019. Home Depot joined issue by service of a verified answer on April 17, 2020. Finer joined issue by service of a verified answer with cross-claim on May 19, 2020. Home Depot now moves to dismiss the cross-claim pursuant to CPLR 3211(a)(5) on the grounds that a Settlement Agreement and General Release dated January 11, 2021 released Home Depot of any and all liability in this matter, and thus, the cross-claim is now extinguished. Finer cross-moves to unseal the Settlement Agreement on the grounds that she is entitled to a set off. Pursuant to General Obligations Law 15-108(b), a “release given in good faith by the injured person to one tortfeasor as provided in subsection (a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules”. However, “when a plaintiff settles an action with one defendant, the recovery against the remaining defendants shall be reduced by the amount of the settlement or by the settling tortfeasor’s equitable share of the damages, whichever is greater” (Maione v. Pindyck, 32 AD3d 827, 828 [2d Dept. 2006]). Here, it is undisputed that the cross-claim asserted against Home Depot is extinguished. Althoguh Finer seeks disclosure of the terms of the Settlement Agreement, Finer has failed to establish that the terms of the Settlement Agreement are material and necessary to her defense of the action to warrant usurping the confidentiality of the agreement between the other parties (see CPLR 3101; Matter of New York County Data Entry Worker Prod. Liability Litig., 222 AD2d 381 [1st Dept. 1995]). Moreover, General Obligations Law 15-108 is relevant only if a verdict is rendered against the non-settling defendant to determine the post-verdict apportionment (see Matter of Steam Pipe Explosion at 41st St. & Lexington Ave., 128 AD3d 493 [1st Dept. 2015]). Regarding that branch of the motion for attorney’s fees, conduct is frivolous under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]) or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][2]), or “it asserts material factual statements that are false” (22 NYCRR 130-1.1[c][3]). Under the circumstances, this Court finds that co-defendant’s conduct does not arise to such level. Accordingly, for the above stated reasons, it is hereby, ORDERED, that the motion is granted to the extent that the action and cross-claim asserted against defendant HOME DEPOT U.S.A., INC. are dismissed in their entirety against defendant HOME DEPOT U.S.A., INC.; and it is further ORDERED, that the cross-motion is denied; and it is further ORDERED, that only if a verdict is rendered against defendant SUSAN M. FINER, the settlement amount contained in the Settlement Agreement and General Release dated January 11, 2021 shall be disclosed solely to defendant SUSAN M. FINER. Dated: June 17, 2021
