Scott v Malik
Annotate this CaseDecided on February 19, 2009
Civil Court of the City of New York, New York County
Maxine Scott, Plaintiff,
against
Evan S. Malik, Defendant.
300504TSN05
Plaintiff's lawyer is Alan D. Levine, Esq., 80-02 Kew Gardens Road, Suite 1010, Kew Gardens, NY 11415, 718-793-6363
Defendant's lawyer is S. Marc Alacqua, Esq, Alacqua & Baierlein, LLP, One Old Country Road, Carle Place, NY 11514-1820, 516-741-2100
Jeffrey K. Oing, J.
Plaintiff commenced this action against defendant seeking to recover damages
for personal injuries arising out of a battery and false imprisonment. This Court tried this action
with a jury on November 6, 10, 12, 13, 14 2008.
At trial, plaintiff gave testimony that she was employed at the time as an escort, that on September 19, 2004 defendant contacted her employer and requested that an escort be sent to his Manhattan apartment, and that she arrived at his apartment. She further testified that there was no sexual activity during the hour long session, that she and defendant merely laid on his bed and talked, and that when time expired she gathered her belongings to leave. At that moment, plaintiff testified that defendant became physical with her and began punching her. She testified that defendant would not allow her to leave his apartment, and that when she managed to flee the apartment and get into the elevator defendant grabbed her breast causing a laceration. She claimed the cut was deep enough to expose her breast implant.
Defendant's testimony did not contradict plaintiff's testimony as to how and why she came to his apartment. In fact, he admitted to calling the escort service for the purpose of having a sexual encounter, but when plaintiff arrived he changed [*2]his mind. His testimony concerning the moment she was leaving his apartment, however, is very different. Defendant testified that as plaintiff was about to leave he noticed that his valuable watch piece, with a retail value of $25,000, was missing from the night stand. He immediately stopped plaintiff from leaving and started to ask her for her assistance. When she started to resist, defendant became wary and believed she had taken the watch. A struggle ensued. He testified that he never struck her, that he merely grabbed her wrist, and that he called 911. He also testified that he cancelled the 911 call. Ultimately, defendant testified that he let plaintiff leave. Defendant testified that he found the watch in the garbage can located in the stairway by his apartment.
On November 14, 2008, the jury returned a verdict in favor of plaintiff and against defendant. Specifically, the jury found in favor of plaintiff and against defendant on her claim for battery and only awarded her past damages in the amount of $15,000. The jury unanimously rejected plaintiff's claim for false imprisonment.
Were these the only facts, the case would be concluded and I would enter judgment in favor of plaintiff and against defendant. That is not the case. During her testimony, plaintiff testified that she filed for bankruptcy protection in September 2005 after she had commenced this action. Plaintiff listed approximately $81,000 in debt on her bankruptcy proceeding schedule. She did not, however, list this lawsuit as an asset in that schedule. She explained that she did not believe that listing the lawsuit was necessary.
Defendant's counsel moved to dismiss for lack of standing on three separate occasions: at the close of plaintiff's case, when defendant rested, and after the jury's verdict. The affirmative defense of lack of capacity to sue is generally waived if it is not raised in a responsive pleading or on a motion to dismiss (CPLR 3211[a](3); [e]). Here, plaintiff filed her bankruptcy petition in September 2005. As such, there was no waiver because plaintiff's lack of capacity did not arise until after issue had been joined when defendant served and filed its answer on March 21, 2005. Accordingly, I reserved decision on each application.
Turning to plaintiff's purported lack of standing, the law is clear. A debtor's failure, intentional or not, to list a legal claim as an asset in his or her bankruptcy proceeding causes the claim to remain the property of the bankruptcy estate and precludes the debtor from pursuing the claim on his or her own behalf (Dynamics Corp. of America v. Marine Midland Bank-New York, 69 NY2d 191, 196-198 [1987]). Such a harsh, bright-line rule exists to ensure diligent disclosure efforts so as to prevent prejudicing the interests of creditors, and to permit the Bankruptcy Court and the creditors to determine whether the [*3]claims should be pursued on the creditors' behalf (Id.). Thus, plaintiff's failure, whether innocent or not, to disclose this lawsuit in her bankruptcy petition deprived her of the legal capacity to sue in this action (Whelan v Longo, 7 NY3d 821 [2006]). Nonetheless, having said that, there is precedent to permit plaintiff, as debtor, to make an application before the Bankruptcy Court to reopen her bankruptcy case for the purpose of amending her schedule to include this action (see, Berry v Rampersad, __ Misc 3d __, 2008 WL 4531494 [Sup Ct, Kings County 2008]). A resulting Bankruptcy Court order directing substitution and continuation of this action would remedy plaintiff's lack of capacity. Accordingly, I granted plaintiff's counsel's application to permit him to seek to have plaintiff's bankruptcy case reopened. Pending further notification, I held in abeyance entry of judgment in this action.
In a letter dated December 2, 2008, counsel advised this Court of the following:
The bankruptcy trustee has informed me that, because of the relatively small amount
of the verdict for plaintiff in the action, he has chosen not to reopen the bankruptcy proceeding.
Under these circumstances, notwithstanding the jury's verdict, I am compelled to
grant defendant's motion to dismiss this action on the ground that plaintiff lacks legal capacity
not only to commence this action, but also to maintain it.
Accordingly, defendant's motion to dismiss this action on the ground that plaintiff lacked standing to commence and maintain this action is granted, and the action is hereby dismissed.
This memorandum opinion constitutes the decision and order of this Court. A copy of this
decision and order has been mailed to the parties.
Dated: February 19, 2009
HON. JEFFREY K. OING, C.C.J.
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