Flores v Thornwood Ldt, LLC
Annotate this CaseDecided on October 7, 2016
Supreme Court, Westchester County
Jorge Flores and LORENA FLORES, Plaintiff,
against
Thornwood Ldt, LLC, THORNWOOD RX DEVELOPMENT, LLC, DLC MANAGEMENT CORPORATION and WALGREEN EASTERN CO., INC., Defendant.
58511/2013
Plaintiff
John F Nash
1140 Franklin Avenue
Garden City, NY
Nino J Caridi
Wood, Smith,Henning and Berman
222 east 41st St
New York, NY
William J. Giacomo, J.
The following papers were read on plaintiff's motion for summary judgment on the issue of liability, defendants' motion to dismiss the complaint, and plaintiff's cross motion to amend the complaint.
[*2]PAPERS NUMBERED
Plaintiff's Notice of Motion/Affidavits/Exhibits 1-3
Affirmation in Opposition 4
Reply Affirmation 5
Defendant's Order to Show Cause/Affidavits/Exhibits 6-8
Plaintiff's Affirmation in Opposition 9
Plaintiff Notice of Cross Motion/Affirmation 10
Affirmation in Opposition/Exhibits 11-12
Factual and Procedural Background
On October 18, 2011, plaintiff was injured at a construction site located at 35 Kensico Avenue, Thornwood, New York. He and his wife commenced this personal injury action on May 30, 2013. Issue was joined by defendants in June and July of 2013. At a preliminary conference, a single law firm took over all of the defendants' defenses.
A Note of Issue was filed on March 6, 2015.
On July 6, 2015, plaintiff moved for summary judgment on his complaint arguing, inter alia, that pursuant to the Labor Law defendants are absolutely liable for his injuries. This motion is still pending.
On November 7, 2015 the parties agreed to proceed with mediation in this matter. While preparing for the mediation, defendants learned that plaintiff Jorge Flores filed for bankruptcy under Chapter 7 in January 2015 and that a discharge was issued in May 2015. This pending litigation was not listed on Jorge Flores's bankruptcy petition.
Defendants now move via an order to show cause for leave to amend their answer to assert the defense of lack of standing and then to dismiss the complaint. Defendants argue that if the complaint is dismissed as to Jorge Flores it must be dismissed as to Lorena Flores since her action is derivative to that of Jorge Flores.
Plaintiffs cross move for leave to amend their complaint to substitute John A. Wolf, Bankruptcy Trustee for Jorge Flores and Lorena Flores. Plaintiffs state that they have also petitioned the bankruptcy Court to re-open the bankruptcy of Mr. Flores and amend his petition to add this litigation as an asset and to appoint the Trustee as plaintiff.
Discussion
The Court will address the motions in the order it deems most logical
Defendant's Motion for Leave to Amend and to Dismiss the Complaint
Once plaintiff, as debtor, filed bankruptcy, the trustee stood in his shoes as legal representative of the estate and had the legal capacity to commence and prosecute an action arising prior to the bankruptcy (see Reynolds v. Blue Cross of Northeastern New York Inc., 4210 AD2d 619 [3rd Dept 1994]). While the trustee in bankruptcy has capacity to sue or prosecute in his or her own name (see Quiros v. Polow, 135 AD2d 697, 699 [2nd Dept 1987], lv. dismissed 72 NY2d 840), substitution is not available to cure the deficiency as a party with no capacity to sue cannot be replaced with one who has capacity in these circumstances (see Matter of C & M Plastics [Collins], 168 AD2d [*3]160, 161—162 [3rd Dept 1991]).
Here, the filing of bankruptcy by Jorge Flores in January 2015 and receiving a discharge in May 2015 without listing this litigation as an asset in the bankruptcy estate, renders Jorge Flores legally incapable of continuing this action. Instead, the trustee must commence a new action in a representative capacity on behalf of Jorge Flores's bankruptcy estate and, in doing so, he will receive the benefit of the 6—month extension embodied in CPLR 205 (see Carrick v. Central Gen. Hosp., 51 NY2d 242, 252; Pinto v. Ancona, 262 AD2d 472 [2nd Dept 1999]). Upon the recommencement of a new action by the bankruptcy trustee, the derivative action by Lorena Flores can be joined with the trustee's action (see Buckley v. National Frgt., 220 AD2d 155 [2nd Dept 1988]).
Accordingly, defendants' motion seeking leave to amend their answer to assert a defense of lack of standing is GRANTED and upon amendment defendants' motion to dismiss the action based upon Jorge Flores's lack of capacity to prosecute this action is GRANTED, without prejudice to Lorena Flores.
Plaintiff's Motions
Based upon the foregoing, plaintiffs' cross motion to amend its complaint is DENIED. Likewise, plaintiffs' motion for summary judgment is DENIED.
Dated: October 7, 2016
White Plains, New York
HON. WILLIAM J. GIACOMO, J.S.C.
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