Martin v Foglio

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Martin v Foglio 2020 NY Slip Op 35059(U) February 5, 2020 Supreme Court, Westchester County Docket Number: Index No. 57142/2016 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:35 AM NYSCEF DOC. NO. 42 INDEX NO. 57142/2016 RECEIVED NYSCEF: 02/05/2020 commence the statutory statutory time time To commence period for appeals appeals as of of right right period (CPLR 55 JJ[a]), 13[aD, you are advised advised (CPLR serve a copy copy of of this order, order, with to serve notice of of entry, entry, upon upon all parties. parties. notice SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW NEW YORK SUPREME YORK COUNTY OF OF WESTCHESTER COUNTY WESTCHESTER --------------------------------------------------------------------------x --------------------------------------------------------------------------x KENNETH G. MARTIN, MARTIN, JR., JR., KENNETH Plaintiff, Plaintiff, -against-against- DECISION & ORDER ORDER DECISION Index No. 57142/2016 57142/2016 Index ANN MARIE FOGLIO FOGLIO and and CONSOLIDATED CONSOLIDATED EDISON EDISON ANNMARIE OF NEW NEW YORK, YORK, INC., INC., OF Seq. No. No.11 Defendants. Defendants. --------------------------------------------------------------------------x --------------------------------------------------------------------------x WOOD,J. WOOD,J. New York York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Document Document Numbers 21-29, 31-38, 31-38, New Numbers 21-29, were read in connection connection with with defendants' defendants' motion motion for an order order to amend amend their their answer answer and grant grant dismissal in their their favor. dismissal This action action arose arose from a motor motor vehicle vehicle accident accident on March March 23, 2015, 2015, wherein wherein defendant defendant This Foglio was operating operating a vehicle vehicle owned owned by Con Edison, Edison, when when the vehicle vehicle was caused caused to come come into Foglio contact with that that of of plaintiff. plaintiff. contact NOW, based upon upon the foregoing foregoing the motion motion is decided decided as follows: follows: NOW, based Under CPLR CPLR 3025, 3025, "a "a party party may amend amend his or her pleading, supplement it by setting setting pleading, or supplement Under additional or subsequent subsequent transactions transactions or occurrences, occurrences, at any time time by leave leave of court or by forth additional of court stipulation of of all parties. parties. Leave Leave shall shall be freely given given upon upon such terms terms as may may be just including the just including stipulation granting of of costs costs and continuances. continuances. Any motion motion to amend amend or supplement supplement pleadings pleadings shall be granting accompanied by the proposed amended or supplemental supplemental pleading pleading clearly clearly showing showing the changes changes or accompanied proposed amended 1 [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:35 AM NYSCEF DOC. NO. 42 INDEX NO. 57142/2016 RECEIVED NYSCEF: 02/05/2020 additions to be made made to the pleading." pleading." additions "The granting granting of of leave leave to amend amend a pleading pleading is in the sound sound discretion "The discretion of of the trial trial court court and and exercise of of the court's court's discretion discretion will not be lightly lightly disturbed" disturbed" (Henderson (Henderson v Gulati, the exercise Gulati, 270 270 AD2d 308, 309 [2d Dept Dept 2000]). 2000]). One will generally generally be freely given given leave leave to amend their AD2d amend their pleadings under under CPLR CPLR 3025(b), 3025(b), "unless "unless the proposed proposed amendment would unfairly unfairly prejudice prejudice or pleadings amendment (1) would surprise the opposing opposing party, palpably insufficient insufficient or patently devoid of merit. surprise party, or (2) is palpably patently devoid of merit. (Maldonado v Newport Gardens, Inc., 91 91 AD3d AD3d 731 [2d Dept Dept 2012]). 2012]). "In "In exercising exercising its (Maldonado Newport Gardens, discretion, the court court will consider consider how how long the amending party was aware of of the facts upon discretion, amending party was aware upon which the motion motion was predicated, predicated, and whether whether a reasonable reasonable excuse delay is offered" offered" which excuse for the the delay (Caruso v Anpro, Anpro, Ltd., 215 AD2d AD2d 713 [2d Dept Dept 1995]). It must must be noted noted that, that, "mere "mere lateness lateness is (Caruso barrier to the amendment. amendment. It must must be lateness lateness coupled significant prejudice prejudice to the other not a barrier coupled with with significant other side" (Edenwald (Edenwald Contracting Contracting Co., Inc. v City of of New York, 60 NY2d NY2d 957, 957, 959 side" New York, 959 [2d Dept Dept 1983] citing Siegel, Siegel, Practice Practice Commentaries, Commentaries, McKinney's McKinney's Cons.Laws Cons.Laws of N.Y., Book CPLR 3025:5, ofN.Y., Book 7B, CPLR 3025:5, citing "the general general rule is that that the legal sufficiency merits of proposed amendments amendments p. 477). Also, "the sufficiency or merits of proposed examined on a motion motion to amend amend unless unless the insufficiency insufficiency or lack lack of merit is clear of merit clear and will not be examined doubt." (Ficorilli (Ficorilli v Thomsen, Thomsen, 262 AD2d AD2d 602, 603 [2d Dept Dept 1999]). 1999]). free from doubt." Further, leave to amend amend a pleading pleading should granted "where "where there there is no significant Further, should be granted significant prejudice or surprise surprise to the opposing opposing party party and where where the documentary documentary evidence evidence submitted submitted in prejudice support of of the motion motion indicates indicates that that the proposed proposed amendment have merit" merit" support amendment may may have (Zito v County County of of Suffolk, Suffolk, 81 AD3d AD3d 722, 724 [2d Dept Dept 2011]). 2011]). Prejudice Prejudice is not not mere mere exposure exposure of of defendant to greater greater liability liability but, instead instead "there "there must must be some some indication indication that that the defendant defendant the defendant hindered in the preparation preparation of of his case or has been been prevented prevented from taking taking some some measure measure has been hindered 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:35 AM NYSCEF DOC. NO. 42 INDEX NO. 57142/2016 RECEIVED NYSCEF: 02/05/2020 in support support of of his position" position" (Loomis (Loomis v Civetta Civetta Corinno Corinno Const. Corp., 54 NY2d 18,23 [1981]). Const. Corp., NY2d 18, 23 [1981]). CPLR 321 3211(a)(3) allows the court court to dismiss dismiss an action action where where the the party party bringing CPLR l(a)(3) allows bringing the action action bankruptcy situation situation where where plaintiff plaintiff declares declares bankruptcy lacks the legal capacity capacity to sue. In a bankruptcy bankruptcy will capacity to sue on a cause cause of of action action if if plaintiff plaintiff failed to disclose disclose the existence existence of lack capacity of the cause cause of of action as an asset asset in the bankruptcy bankruptcy proceeding proceeding (Dynamics (Dynamics Corp. of of America America v. Marine Midland action Marine Midland Bank-New 191 [1987] [1987];; Whelan Whelan v Longo, Longo, 23 AD3d 459 [2d Dept2005]). Dept2005]). BankNew York, York, 69 NY2d NY2d 191 AD3d 459 Even if if a party party waives waives defense defense of of lack of of capacity failing to raise capacity to sue by failing raise it in answer, answer, Even defense can bz b:l interposed interposed in amended amended answer, answer, by leave of of court, court, so long long as amendment amendment does defense does not other party party prejudice prejudice or surprise surprise resulting resulting directly directly from the delay cause other delay (CPLR (CPLR 3025(b), 3025(b), 3211(a)(3), Complete Mgmt., Mgmt., Inc. v Rubenstein, Rubenstein, 74 AD3d AD3d 722 [2d Dept Dept 2010]). 2010]). 321 l(a)(3), (e); Complete Defendants now now move move to amend their answer pursuant to CPLR CPLR 3025(b) 3025(b) to include Defendants amend their answer pursuant include the affirmative defense defense of of lack lack of of capacity capacity to sue and for a judgment dismissing the plaintiffs plaintiffs affirmative judgment dismissing complaint pursuant pursuant to CPLR CPLR 3211 (a)(3), (a)(3), on the grounds plaintiff failed failed to include include his complaint grounds that that plaintiff personal injury injury cause cause of action as an asset asset with his bankruptcy bankruptcy petitions. petitions. of action personal After defendants defendants interposed interposed an answer answer in this action, action, plaintiff plaintiff had had filed two bankruptcy bankruptcy After petitions relief relief under under Chapter Chapter 13, which which were were dismissed dismissed upon upon a motion motion by debtor's attorney. debtor's attorney. petitions According to plaintiff, plaintiff, in both both matters, matters, plaintiffs plaintiffs proposed proposed payment payment plan plan was was not agreed upon, upon, According not agreed plan was not confirmed, confirmed, no payments payments were were made upon the plan, plan, and plaintiff's plaintiffs debts were not the plan made upon debts were discharged. US Trustees, Trustees, and the bankruptcy bankruptcy estates, possess or control control plaintiffs discharged. estates, did not possess plaintiff's possessions, including including the instant instant cause cause of of action. possessions, action. "The Bankruptcy Bankruptcy Code Code broadly broadly defines defines the property property of debtor to include include causes "The of a debtor causes of of action existing existing at the time time of of the commencement commencement of action" (Bromley (Bromley v Fleet Fleet action of the bankruptcy bankruptcy action" 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:35 AM NYSCEF DOC. NO. 42 INDEX NO. 57142/2016 RECEIVED NYSCEF: 02/05/2020 Ban1c, ofa Bank, 240 A.D.2d A.D.2d 611 [2d Dept Dept 1997]; see also, 11 11 USC§ USC S 54l[a] 541[a] [I]). [1]). "Upon "Upon the filing filing ofa voluntary bankruptcy bankruptcy petition, petition, all property property that that the debtor owns or subsequently voluntary debtor owns subsequently acquires, acquires, including a cause cause of of action, action, vests vests in the bankruptcy bankruptcy estate. estate. A debtor's debtor's failure failure to list a legal claim including claim asset on his or her bankruptcy bankruptcy petition petition causes causes the claim claim to remain the property property of of the as an asset remain the bankruptcy estate estate and precludes precludes a debtor debtor from pursuing pursuing the claim claim on his or her own own behalf' behalf' bankruptcy (Coogan v Ec.~'s E0'S Bargain Bargain Buggy Buggy Corp., Corp., 279 279AD2d Dept 2001]). (Coogan AD2d 445 [2d Dept 2001]). Here, contrary contrary to defendants' defendants' contention, plaintiff, as a litigant litigant in a Chapter Here, contention, plaintiff, Chapter 13 bankruptcy proceeding, proceeding, possessed possessed the requisite requisite capacity capacity to maintain this action iliicke v bankruptcy maintain this action iliicke Schwartzapfel Partners, Partners, P.C., 148 AD3d AD3d 1168, 1170 [2d Dept Dept 2017], Goldman, Schwartzapfel 2017], citing citing Giovinco Giovinco v Goldman, AD2d 469,469; 469, 469; Olick Glick v Parker Parker & Parsley Parsley Petroleum Petroleum Co., 145 F.3d F.3d 513 513,, 515), appeal 515), appeal 276 AD2d withdrawn, 33 NY3d [2019]). withdrawn, NY3d 945 [2019]). Second Department Department explains explains that: The Second contrast to Chapter Chapter 7 proceedings, proceedings, the object of a Chapter Chapter 13 proceeding proceeding is the "In contrast object of rehabilitation of of the debtor debtor under under a plan plan that that adjusts debts owed creditors by the debtor's debtor's adjusts debts owed to creditors rehabilitation regular periodic periodic payments payments derived derived principally income. Thus, Thus, in a Chapter proceeding, a regular principally from income. Chapter 13 proceeding, debtor generally generally retains retains his property, property, if if he so proposes, proposes, and seeks confirmation of plan to seeks court court confirmation of a plan debtor debts over over a threethree- to five-year five-year period period (see 11 11 U.S.C. U.S.C. §§ SS 1306[b]; 1306[b]; 1322, 1327[b] 1327[b] ). repay his debts Payments under under a Chapter Chapter 13 plan plan are usually usually made made from a debtor's "future earnings debtor's "future earnings or other other Payments income" (11 U.S.C. U.S.C. §S 1322[a] [I]). [1] ). "Accordingly, "Accordingly, the the Chapter Chapter 13 estate which estate from which future income" creditors may be paid paid includes includes both both the debtor's property at the the time time of of his bankruptcy bankruptcy petition, petition, creditors debtor's property wages and and property property acquired acquired after after filing" filing" (Harris (Harris v. Viegelahn, Viegelahn, --U.S.U.S.--,--, --, --, 135 and any wages 191 L.Ed.2d L.Ed.2d 783; see 11 11 U.S.C. U.S.C. §S 1306 [a]). [a]). Assets Assets acquired Chapter acquired after after a Chapter S.Ct. 1829, 1335, 191 13 plan is confirmed confirmed by the court court are not included included as property property of 13 of the estate, estate, unless unless they they are necessary to maintain maintain the plan plan (see 11 11 U.S.C. U.S.C. §§ SS 1306[a]; 1306[a]; 1326), 1326), or the trustee trustee seeks seeks a necessary modification of of the plan plan to remedy remedy a substantial substantial change change in the debtor's debtor's income income or expenses that modification expenses that anticipated at the time time of of the confirmation confirmation hearing hearing (see 11 11 U.S U.S.C. 1329[a]; In re Solis, Solis, .C. §S 1329[a]; was not anticipated [Bankr.S.D.N.Y.] )." 172 B.R. 530, 532 [Bankr.S.D.N.Y.] (iliicke v Schwartzapfel Schwartzapfel Partners, Partners, P.C., P.C., 148 AD3d AD3d 1168, 1170 [2d Dept (iliicke Dept 2017]). 2017]). Thus, "while "while Chapter Chapter 7 and Chapter Chapter 11 11 debtors maintain civil Thus, debtors lose standing standing to maintain civil ~. [* 4] 4 4 of 5 FILED: WESTCHESTER COUNTY CLERK 02/06/2020 10:35 AM NYSCEF DOC. NO. 42 INDEX NO. 57142/2016 RECEIVED NYSCEF: 02/05/2020 suits-which must must be brought brought and/or and/or maintained maintained by their their bankruptcy bankruptcy trusteestrustees-it it is clear suits-which clear that that Chapter 13 debtors debtors like plaintiff plaintiff are not subject restriction" (Murray of Educ. of of Chapter subject to this restriction" (Murray v. Bd. of of New York, 248 B.R. 484, 484, 486 [SDNY [SDNY 2000], 2000], see Olick Parker & Parsley Parsley Petroleum Petroleum City of New York, Olick v Parker :-13 [2d Cir.1998]). Cir.1998]). 11 Plaintiff Plaintiff does prosecute his claims Co., 145 F3d .:13 does not lack the capacity capacity to prosecute claims in list the claims this action action by having having filed a Chapter Chapter 13 13 petition petition and/or and/or his failure failure to list claims at issue issue in this action on the bankruptcy bankruptcy petitions. petitions. action Thus, after after consideration consideration of of the arguments parties, the motion motion by defendants Thus, arguments by the parties, defendants for amend their their answer answer to assert assert the affirmative affirmative defense defense of lack of of lack of capacity capacity to sue and for leave to amend dismissal of of the complaint, complaint, is denied palpably insufficient insufficient or patently patently devoid devoid of merit. denied as palpably of merit. dismissal other matters matters not herein herein decided denied. This constitutes the the Decision Decision and All other decided are denied. This constitutes and Order Order of the Court. of Date: February February 5 5,, 2020 2020 Date: White Plains, Plains, New New York York White HON. CHARLES WOO HON. CHARLES D. wo,9-h Justice of the Supreme Supreme Qourt a5urt Justice of the TO: Parties by NYSCEF All Parties NYSCEF Jean-Paul v. 67-30 67-30 Dartmouth Dartmouth St. Owners Owners Corp., Corp., 174 A.D.3d A.D.3d 870, 870, 871, Dept 2019]) 2019]) In Jean-Paul 871 , [2d Dept plaintiff did not disclose, disclose, in the bankruptcy bankruptcy petition petition that that she filed a bankruptcy bankruptcy petition. petition. The plaintiff The Court found that the failure of a party to disclose a cause of action as an asset in a prior Court that failure of party disclose cause of action asset prior bankruptcy proceeding, proceeding, which which the party party knew knew or should have known known existed the time time of of that that bankruptcy should have existed at the proceeding, deprives him or her of 'the legal capacity to sue subsequently on that cause of action' proceeding, deprives him of 'the capacity subsequently that cause of action' However, significantly, significantly, the Jean-Paul Jean-Paul matter matter involved involved a Chapter bankruptcy petition, However, Chapter 7 bankruptcy petition, and and therefore, is distinguishable from the matter at hand. therefore, distinguishable matter 1 1 5 [* 5] 5 of 5

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