Lyons v Donnelly

[*1] Lyons v Donnelly 2005 NY Slip Op 51449(U) [9 Misc 3d 1108(A)] Decided on July 15, 2005 Supreme Court, Nassau County Lally, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 15, 2005
Supreme Court, Nassau County

MALACHY LYONS, JR., Plaintiff(s),

against

PAUL J. DONNELLY, JR., Defendant(s).



4806/92

Ute Wolff Lally, J.

This legal malpractice action was marked off the trial calendar on February 23, 2004 in the Calendar Control Part. It is well established that "in order to restore a case that has been dismissed pursuant to CPLR 3404, the plaintiff must demonstrate (1) a reasonable excuse for the failure to timely restore, (2) a meritorious cause of action, (3) a lack of intent to abandon, and (4) lack of prejudice to the opposing party" (Neidereger v Hidden Park Apts., Inc., 306 AD2d 392). Counsel for the defendant contends that the plaintiff cannot show a meritorious cause of action because he failed to include this legal malpractice cause of action as an asset of his bankruptcy estate when he filed a Chapter 7 Bankruptcy Petition in 1992 after the commencement of this action. The Court agrees.

It is the rule that: "A debtor's failure to list a legal [*2]claim as an asset on his or her bankruptcy petition causes the claim to remain the property of the bankruptcy estate and precludes a debtor from pursuing the claim on his or her own behalf" (Coogan v Ed's Bargain Buggy Corp., 279 AD2d 445; see, also, Mehlenbacher v Swartout, 289 AD2d 651-652). Counsel for the defendant has submitted a certified copy of the record in the 1992 bankruptcy proceeding, which shows that this legal malpractice cause of action was not listed as an asset of the bankrupt's estate and that an order of discharge was entered on April 26, 1993. (Exhibit A to Rebuttal Affirmation). This Bankruptcy Court record establishes that the plaintiff lacks standing to maintain this action.

Counsel for the plaintiff states that: "From the reinstatement of this action in 1994 until the date of this affirmation [i.e., May 10, 2005], defendant has not moved to dismiss this action under any of the theories presented to the court in opposition to the instant motion to restore this matter to the trial calendar." Counsel requests that the Court consider the defendant's laches as the sole reason this case has not been dismissed to date and disregard the defendant's opposition to the instant application. The Court holds that this is not an appropriate case for the application of the doctrine of laches.

Initially, the Court notes that: "The equitable doctrine of laches can be applied to estop a party from asserting a defense when there has been an inexcusable delay in raising the defense ... together with actual injury or prejudice" (Ricciardi v Johnstown Leather, 1 AD3d 661, 663). "Prejudice is established by showing an injury, change of position, loss of evidence, or some other disadvantage resulting from the delay" (Resk v City of New York, 293 AD2d 661, 662). The plaintiff has neither alleged nor demonstrated that he has been prejudiced by the delay. The "[m]ere lapse of time does not establish prejudice" (Ricciardi v Johnstown Leather, supra; see, also, 75A NY Jur2d, Limitations and Laches, § 369). Moreover, it appears to the Court that the long delay in this case is attributable to the plaintiff's inaction in prosecuting his claim not to the defendant's failure to assert a defense.

Accordingly, this action will not be restored to the calendar.

Dated: __________________ _______________________________

J.S.C. [*3]