Dixon v Chang

[*1] Dixon v Chang 2008 NY Slip Op 52173(U) [21 Misc 3d 1125(A)] Decided on November 3, 2008 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2008
Supreme Court, Richmond County

Diana Dixon, Plaintiff,

against

Edwin M. Chang, M.D., PAUL KELLEHER, M.D., LUIGI J. PARISI, M.D., STEPHEN A. KULICK, M.D., ST. VINCENT'S HOSPITAL and NEUROSCIENCE ASSOCIATES OF NEW YORK, A DIVISION OF HEALTHCARE ASSOCIATES IN MEDICINE, PC, Defendants.



104442/07



The attorneys for the parties are as follows:

For Plaintiff:Law Offices of Joseph M. Lichtenstein, PC

170 Old Country Road - Suite 301

Mineola, NY 11501

516-873-6300

For Defendant Chang:McAloon & Friedman, P.C.

123 William Street - 25th Floor

New York, NY 10038

212-732-8700

For Defendant St. Vincent'sKaufman Borgeest & Ryan, LLP

Hospital200 Summit Lake Drive

Valhalla, NY 10595

914-741-6100

For Defendant Neuroscience Amabile & Erman, PC

Associates,etc.1000 South Avenue

Staten Island, NY 10314

718-370-7030

For Defendant Paul Kelleher: Vaslas Lepowsky Haas & Danke

201 Edward Curry Avenue

Staten Island, NY 10314

718-761-9300

Defendant Pro Se - Parisi:355 Bard Avenue

Staten Island, NY 10310

Defendant Pro Se - Kulick:1099 Targee Street

Staten Island, NY 10304

Philip G. Minardo, J.

Defendant St. Vincent's Hospital (hereafter, "St. Vincent's")[FN1], moves by notice of motion for (1) summary judgment dismissing the complaint as against it and (2) a temporary stay of all disclosure and discovery until the determination of this motion. Defendant Paul Kelleher, M.D. (hereafter, Dr. Kelleher) moves by notice of cross motion for summary judgment dismissing the complaint as against him. Plaintiff Diana Dixon opposes both motions.

This action sounding in medical malpractice and lack of informed consent arises from treatment allegedly rendered to plaintiff on June 10, 2005 while a patient at St. Vincent's, a month before the hospital filed for Chapter 11 bankruptcy protection, reorganization and liquidation. Plaintiff commenced this action by the filing and service of a summons with complaint on or about November 23, 2007. Issue was joined by the service of an answer by St. Vincent's on January 11, 2008, and by Dr. Kelleher on or about April 21, 2008.

In moving for summary judgment, the hospital contends that since plaintiff failed to file a proof of claim in the bankruptcy proceeding, she is forever barred from pursuing the cause of action alleged in her complaint.

As is relevant, St. Vincent's commenced bankruptcy proceedings pursuant to Chapter 11 of the United States Code by filing a voluntary petition with the United States Bankruptcy Court for the Southern District of New York on July 5, 2005 (Case No. 05-14945). On January 26, 2006, that Court (Hardin, J.) entered a so-called "Bar Order" directing all potential creditors whose claims arose prior to July 5, 2005 (i.e., the Commencement Date) to file a written proofs of claim on or before March 30, 2006 (hereinafter, the "Bar Date")[FN2]. On January 31, 2006, St. Vincent's filed a notice of deadline for the filing of proofs of claim with the Bankruptcy Court, whereupon notice of the Bar Date was published in accordance with the terms of the above order and the Federal Bankruptcy Rules in (1) the New York Times, the Daily News and the Staten Island Advance on March 9, 2006, and (2) the Journal News on March 10, 2006. It is uncontroverted that plaintiff failed to file a proof of claim concerning the causes of action alleged herein in her complaint. On July 27, 2007, the Bankruptcy Court (Hardin, J.) entered an order confirming St. Vincent's plan for reorganization and liquidation under Chapter 11, and on August 30, 2007, a reorganized St. Vincent's emerged from bankruptcy. As previously indicated, the hospital contends that this series of events operates to forever bar this plaintiff from asserting as against it the medical malpractice and related claims alleged in the complaint.

In opposition, plaintiff contends that the hospital's motion to dismiss is fundamentally flawed because its alleged discharge in bankruptcy was not pleaded as an affirmative defense in the answer or raised in a pre-answer motion to dismiss (see CPLR §3211(a)[5]). Accordingly, the defense of discharge in bankruptcy must be deemed waived (see CPLR§3211[e]). In addition, plaintiff contends that the discharge in bankruptcy is ineffective to bar her claims since she was not listed or scheduled by the Debtor, nor notified of the proceedings. As a result, plaintiff argues that her claim is not barred as a matter of substantive law in New York.

It is undisputed that St. Vincent's did not make a CPLR 3211(a) pre-answer motion to dismiss based upon the affirmative defense of "discharge in bankruptcy" set forth in CPLR 3211(a)(5). Moreover, said defense was not raised in St. Vincent's answer, nor has the hospital moved for leave to amend its responsive pleadings pursuant to CPLR 3025 to assert said affirmative defense. Thus, under CPLR 3211(e), the defense has been waived (see Gagor v. White, 53 NY2d 475, 488; State [*2]of New York v. Wolowitz, 96 AD2d 47). Accordingly, St. Vincent's motion for summary judgment based on its purported discharge in bankruptcy must be denied.

In support of his cross motion, Dr. Kelleher states that he was an employee of St. Vincent's at the time of plaintiff's treatment, and is therefore a covered person under Chapter 11 of the Federal Bankruptcy Code. As a result, he claims that the complaint as against him must be dismissed based on plaintiff's failure to file a proof of claim. However, Dr. Kelleher's cross motion suffers from the same deficiency as St. Vincent's motion for summary judgment, and must also be denied.

Under these circumstances, the Court need not reach any further issue.

Accordingly, it is

ORDERED that the motion and cross motion for summary judgment are denied.

ENTER,

s/ Philip G. Minardo

J.S.C.

DATED: November 3, 2008

bh Footnotes

Footnote 1: The hospital, formerly known as Saint Vincent's Catholic Medical Centers of New York, was incorrectly s/h/a St. Vincent's Hospital.

Footnote 2:Section 1111(a) of the Federal Bankruptcy Code and Rule 3003(c)(2) of the Federal Bankruptcy Rules of Procedure generally require that creditors who assert claims against any Debtor that arose prior to the Commencement Date, and whose claims are not listed in the Debtors' Schedules or whose claim is listed on those Schedules as disputed, contingent or unliquidated, must file a proof of claim. As thus defined, plaintiff's claim falls within this category.