Wray v NYC Partnership Hous. Dev. Fund Co., Inc.

[*1] Wray v NYC Partnership Hous. Dev. Fund Co., Inc. 2011 NY Slip Op 52182(U) Decided on November 30, 2011 Civil Court Of The City Of New York, Kings County Bannon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2011
Civil Court of the City of New York, Kings County

Helen Wray, Plaintiff,

against

NYC Partnership Housing Development Fund Company, Inc., MOUNT CALVARY HOUSING DEVELOPMENT FUND CORP., MOUNT CALVARY F.B.H. CHURCH and REV. DR. JEREMIAH FENNELL, Defendants.



300446/09



Appearances:

For plaintiff: Ferro, Kuba, Mangano, Skylar, P.C., 360 W. 31st St. New York, NY 10001

For defendant: The Glassman Law Group, 1389 Pleasant Place, Hewlett, NY 11557

Nancy M. Bannon, J.

In this action seeking damages for personal injuries, the plaintiff moves to substitute Richard J. McCord, the trustee of her bankruptcy estate, as the plaintiff. Upon review of the motion papers and the relevant law, the plaintiff's motion is granted.

On October 16, 2005, the plaintiff, Helen Wray, and her husband, Samuel A. Wray, filed a Chapter 7 bankruptcy petition (see 11 USC § 701, et seq.) in the United States Bankruptcy Court for the Eastern District of New York. In their petition, they listed an interest in a personal injury claim arising from injuries allegedly sustained by Helen Wray in 2004 on the defendants' property. The Bankruptcy Court appointed a trustee and authorized him to retain counsel for purposes of commencing the personal injury action. The action was commenced in Supreme Court, Kings County, and eventually transferred, pursuant to CPLR 325(d), to this court in 2009. Soon after the action was commenced, the Wrays received a bankruptcy discharge and the case was closed without mention of the pending action. By an order dated March 17, 2011, the Bankruptcy Court reopened the bankruptcy case (see 11 USC § 350[b]) and appointed a new trustee, Richard J. McCord, to prosecute the instant personal injury action.

By order dated May 12, 2011, the Bankruptcy Court (Strong, J.), inter alia, authorized the [*2]trustee to retain the law firm of Ferro, Kuba, Mangano, Skylar, P.C. as counsel in this action, and directed the firm to move, within 30 days, for substitution of the trustee as plaintiff. The instant motion ensued. The defendant has submitted no opposition.

Upon the commencement of her bankruptcy case, all of the plaintiff's assets vested in her bankruptcy estate. See 11 USC § 541; Kane v National Union Fire Ins. Co., 535 F 3d 380 (5th Cir 2008). Since these assets included the instant personal injury claim (see 11 USC § 541[a][1]), the trustee, as the representative of the bankruptcy estate, is the only party with authority to prosecute the action. See 11 USC § 323; Tolz v Valente, 39 AD3d 737 (2nd Dept. 2007); Reynolds v Blue Cross of Northeastern NY, 210 AD2d 619 (3rd Dept. 1994); Kane v National Union Fire Ins. Co., supra. Indeed, because the trustee was the successor in interest to the plaintiff debtor (see CPLR 1021), the plaintiff's lack of capacity would subject the action to dismissal on that ground had the plaintiff not listed the claim in her bankruptcy petition. See Ladson v Fessel, 85 AD3d 1128 (2nd Dept. 2011); Rivera v Markowitz, 71 AD3d 449 (1st Dept. 2010); Bajanov v Grossman, 36 AD3d 572 (2nd Dept. 2007); Pinto v Ancona, 262 AD2d 472 (2nd Dept. 1999). The personal injury action did not revest in the plaintiff upon the bankruptcy discharge as it was still pending at the time of the discharge and, thus, had not been administered in the bankruptcy proceeding, nor abandoned by the trustee. See 11 USC § 554; Kane v National Union Fire Ins. Co., supra; see also Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191 (1987). The court further notes that, under the circumstances, the first trustee's naming of the debtor, rather than himself, as the plaintiff in this action may be considered the type of mistake or omission which a court is authorized to correct. See CPLR 2001; Silverman v Flaum, 42 AD3d 447 (2nd Dept. 2007). Having failed to oppose this motion, the defendants make no argument to the contrary.

For these reasons, and upon the order of the Bankruptcy Court directing counsel to seek such relief, "Richard J. McCord, as Bankruptcy Trustee of the estate of Helen D. Wray" shall be substituted as the plaintiff in this action and the caption shall be amended accordingly, nunc pro tunc. See CPLR 3025(b).

Accordingly, it is,

ORDERED that the plaintiff's motion is granted without opposition and Richard J. McCord, as bankruptcy trustee, shall be substituted as plaintiff in this action; and it is further,

ORDERED that the caption shall be amended, nunc pro tunc, to the following: "Richard J. McCord as trustee of the Estate of Helen D. Wray v NYC Partnership Housing Development Fund Company, Inc., Mount Calvary Housing Development Fund Corporation, Mount Calvary F.B.H. Church and Rev. Dr. Jeremiah Fennell"; and it is further,

ORDERED that plaintiff's counsel is directed to serve a copy of this order upon all parties within twenty (20) days.

This constitutes the Decision and Order of the court.

Dated: November 30, 2011__________________________

NANCY M. BANNON, J.C.C.