Ochs v Trust

[*1] Ochs v Trust 2006 NY Slip Op 50938(U) [12 Misc 3d 1157(A)] Decided on May 2, 2006 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 2, 2006
Supreme Court, Richmond County

Martin P. Ochs, as Trustee of the Estate of the Debtor, Dinusha P. Ratnayake, Plaintiff,

against

Vaul Trust, Frank Mannino, and Philip M. Licitra, Defendants.



12773/01

Judith N. McMahon, J.

On November 11, 2000, the plaintiff allegedly sustained injuries when a motor vehicle operated by defendant Philip M. Licitra and leased by defendant Frank Mannino collided with his automobile at the intersection of Jewett Avenue and Victory Boulevard, Staten Island, New York. Defendant Vaul Trust owned the vehicle that was leased by defendant Mannino. In July, 2001, the plaintiff commenced this action and issue was joined by the service of answers by the defendants. After the filing the Note of Issue, the parties have made various motions and cross-motions which are decided as follows:

Initially, the defendants move for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants made a prima facie showing of their entitlement to summary judgment (see, Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Chou v. Welsh, 15 AD3d 622 [2d Dept. 2005]). In opposition, the plaintiff, who has two herniated discs, submitted an affirmation of his chiropractor, which specified the decreased range of motion in his lumbar spine, and explained that these injuries are permanent and causally related to the motor vehicle accident. The chiropractor's opinion, supported by objective evidence, is sufficient to raise a triable issue of fact precluding the granting of summary judgment (see, Toure v. Avis Rent A Car Sys., supra; Mauro v Gold Star Limo Corp., 8 AD3d 352 [2d Dept. 2004]; Fabiano v. Kirkorian, 306 AD2d 373 [2dDept. 2003]).

The plaintiff also moves for a protective order to vacate the May 10, 2005 Notice to Admit that he is "currently a non-documented alien whose country of origin is Sri Lanka". The defendants cross-move for an Order (a) to preclude the plaintiff from testifying at trial about alleged lost earnings, (b) to compel the plaintiff to appear for further deposition as to his [*2]immigration status and (c) to compel the plaintiff to produce citizenship documentation.

In the recent decision Balbuena v. IDR Realty LLC (6 NY3d 338 [Feb. 21, 2006]), the Court of Appeals held that a plaintiff who was injured and thus disabled from future employment while working illegally as an undocumented alien is not thereby barred from recovering a tort award for loss of earning capacity and that such a plaintiff's recovery is not limited to what she or he might have earned in his or her county of origin. Accordingly, the plaintiff's motion to vacate the Notice to Admit is granted, and the defendants' cross-motions are denied.

After the plaintiff filed the Note of Issue, he filed for Bankruptcy under Chapter 7 of the United States Bankruptcy Code. The defendants now move to for an Order (a) granting them leave to amend their answers to assert the affirmative defense of lack of capacity to sue and (b) capping the plaintiff's recovery to $7,500.

Clearly, the plaintiff did not lack the capacity to sue when he commenced this action prior to filing for bankruptcy. Moreover, the plaintiff listed this action on the bankruptcy petition so that the trustee could determine, as he did here, whether to administer the claim for the benefit of the creditors. Thus, the claim has not been abandoned by either the plaintiff or the trustee (compare, Santori v. Met Life, 11 AD3d 597 [2d Dept. 2004]). Additionally, although the plaintiff can personally retain only the first $7,500.00 recovered in this lawsuit, there is no basis to cap the defendants liability to this amount (see, 11 U.S.C. § 522 (b)(2) and NY Debtor & Creditor Law § 282(iii)(3)(iii)). Accordingly, it is

ORDERED, that the defendants' motions for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied; it is further

ORDERED, that the plaintiff's motion to vacate the Notice to Admit is granted and the defendants cross-motion for an order (a) to preclude the plaintiff from testifying at trial about alleged lost earnings, (b) to compel the plaintiff to appear for further deposition as to his immigration status and (c) to compel the plaintiff to produce citizenship documentation is denied; and it is further,

ORDERED that the defendant's cross-motions for an Order (a) granting them leave to amend their Answers to assert the affirmative defense of lack of capacity to sue and (b) capping the Plaintiff's recovery to $7,500 is denied.

This is the Decision/Order of the Court.

E N T E R,

Dated: May 2, 2006

J.S.C. [*3]