DiBenedetto v Hadziyianis

[*1] DiBenedetto v Hadziyianis 2006 NY Slip Op 52073(U) [13 Misc 3d 1231(A)] Decided on September 26, 2006 Supreme Court, Nassau County Alpert, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2006
Supreme Court, Nassau County

Franco DiBenedetto, Plaintiff,

against

Thomas W. Hadziyianis, Defendant.



8036/05

Bruce D. Alpert, J.

Upon the foregoing papers, it is ordered that the defendant's motion for dismissal of the plaintiff's action pursuant to CPLR 3211(a) (3, 5 & 7), converted to an application for summary judgment by Order of this Court dated June 5, 2006, pursuant to CPLR 3211 (c), is determined as hereinafter set forth.

At the outset, the Court acknowledges the receipt of papers denominated as a sur reply affirmation. Inasmuch as it was not accompanied by proof of service, is but a facsimile and was served without leave of the Court, it has not been considered.

As gleaned from a review of the respective submissions, the plaintiff alleges that he sustained personal injuries while in the custody of the Suffolk County Police Department, when, it is contended, he was brutally beaten by various members of the force. The occurrence is asserted to have taken place at the Fifth Precinct on January 8, 2002.

By retainer dated January 24, 2002, the defendant agreed to "prosecute or adjust a claim for damages arising from personal injuries sustained by [plaintiff] *** on 1/8/2002 ***."(Retainer Agreement, Ex. C, opposing submission)

The defendant herein prepared and served a Notice of Claim on the plaintiff's behalf and appeared at the ensuing hearing convened pursuant to section 50-h of the General Municipal Law. The defendant, however, did not file suit, but rather made arrangements to return the file to the to Mr. DiBenedetto in January of 2004.

The instant action was commenced by the filing of process and the acquisition of an Index Number on November 14, 2005. The corresponding complaint, which sounds in professional negligence, alleges, inter alia, that the defendant permitted the controlling limitations period to expire during the tenure of the attorney/client relationship.

Contrary to the position advanced by plaintiff's counsel, plaintiff's claims against the Suffolk County, its Police Department and officers were not already time-barred when the defendant returned Mr. DiBenedetto's file.[*2]While, generally, suit must be initiated against a municipality and its agencies within one (1) year and ninety (90) days of the claim's accrual (see, GML § 50-i), the tenor of the underlying claim concerns the asserted deprivation of the claimant's civil rights (see, 42 USC § 1983). The limitations period applicable thereto is three (3) years from the date of accrual. (see, Okure v Owens, 625 F Supp 1568, affd 815 F2d 45, affd 488 US 235; Perez v County of Nassau, 294 F Supp 2d 386 [ED NY 2003]; Bidnick v Johnson, 253 AD2d 779)

Inasmuch as the underlying claim remained viable for an extended period following the return of Mr. DiBenedetto's file, the defendant's failure to file suit cannot reasonably be construed as a proximate cause of a compensable injury. (see, generally, Ramcharan v Pariser, 20 AD3d 556; Albin v Pearson, 289 AD2d 272; C & F Pollution Control, Inc. v Fidelity and Casualty Company of New York, 222 AD2d 828 [3d Dept.])

Based on the foregoing, plaintiff's complaint fails to state a viable cause of action sounding in professional negligence.

The complaint's disposition would not be altered had the limitations period expired before the return of Mr. DiBenedetto's file. In the period between its return in January of 2004 and the initiation of the instant action, Mr. DiBenedetto filed for bankruptcy protection, which filing resulted in a discharge of the plaintiff's scheduled debts on July 7, 2005.

Notably, the claim sounding in professional negligence against the defendant herein was not scheduled as an asset. The failure to do so deprives the plaintiff of the legal capacity to maintain the instant action (see, Nationwide Associates, Inc. v Epstein, 24 AD3d 738; Tri-State Sol-Aire Corporation v Martin Associates, Inc., 7 AD3d 514; Williams v Stein, 6 AD3d 197 [1st Dept.]) and exposes the complaint to dismissal on that ground.

That the plaintiff may have unwittingly failed to schedule the legal malpractice claim, the cause of action he now seeks to prosecute, affords no refuge in this context. (see, Whelan v Longo, 23 AD3d 459, affd 2006 NY LEXIS 2547; see also, Cafferty v Thompson, 223 AD2d 99, 101, lv den 88 NY2d 815)

"Without a rule precluding such a debtor from later pursuing claims about which it knew or should have known at the time of filing its petition, a debtor-in-possession might employ less than diligent efforts to ascertain and disclose all potential claims, thus undermining its obligation to the estate and prejudicing the interests of the unsecured creditors ( Stein v United Artists Corp., supra, p 892)." (Dynamics Corporation of America v Marine Midland Bank-New York, 69 NY2d 191, 197 [emphasis supplied])

It merits mention that the plaintiff did not seek a stay to permit him to petition the Bankruptcy Court to vacate the discharge (see, Koch v National Basketball Association, Inc., 245 AD2d 230, 231 [1st Dept.]), and, in conjunction therewith, offer to prosecute the action under the latter's supervision to ensure that any judgment obtained would inure to the benefit of his creditors. (see, generally, Hart Systems, Inc. v Arvee Systems, Inc., 244 AD2d 527)

Based on the foregoing, the instant application is granted, and the action is dismissed.

DATED: September 26, 2006..................................................... [*3]

J.S.C.

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