Motion-Secondary: Brendan Sullivan v. City Of New York, Metropolitan Transportation Authority, Metropolitan Transit Authority (Capital Construction Company), The New York City Transit Authority, Tutor Perini Building Corp.

On February 07, 2018 a Motion-Secondary was filed involving a dispute between Brendan Sullivan, and City Of New York, Metropolitan Transit Authority, Metropolitan Transportation Authority, The New York City Transit Authority, Tutor Perini Building Corp., for Torts - Other (personal injury) in the District Court of New York County.

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NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/13/2020

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
BRENDAN SULLIVAN,
AFFIRMATION IN SUPPORT
Plaintiff,
Index No. 151221/2018
-against-
Hon. Frank P. Nervo, J.S.C.
CITY OF NEW YORK, METROPOLITAN
TRANSPORTATION AUTHORITY, THE NEW YORK
CITY TRANSIT AUTHORITY, METROPOLITAN
TRANSIT AUTHORITY (CAPITAL CONSTRUCTION
COMPANY) and TUTOR PERINI BUILDING CORP.,

Defendants.

----------------------------------------------------------------------X

LOUISE M. CHERKIS-, an attorney duly admitted to practice law before the Courts of

the State of New York, affirms the truth of the following under the penalties of perjury and

pursuant to CPLR 2106:

1. I am associated with the firm of Smith Mazure, P.C., attorney for Defendants City

of New York, Metropolitan Transportation Authority, MTA Capital Construction Company,

sued erroneously as Metropolitan Transit Authority (Capital Construction Company), New York

City Transit Authority, sued erroneously as The New York City Transit Authority and Tutor

Perini Building Corp. (“Defendants”), sued and named erroneously herein and I am fully familiar

with the facts and circumstances surrounding the within action.

2. This affirmation is made in support of the instant motion for an order:

A. granting Defendants leave to serve an amended answer to assert the
affirmative defenses of lack of capacity/standing to bring suit, judicial
estoppel, and documentary evidence pursuant to CPLR §3025(b) and (c),
nunc pro tunc; and

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B. pursuant to CPLR §3211(a) (1), (3), (5), (7) for an Order dismissing the
plaintiff’s case in its entirety (including cross claims) on the basis of the
plaintiff’s lack of standing/capacity to proceed with this cause of action;
plaintiff being barred by judicial estoppel from proceeding with this action
after failing to list it as an asset in the Chapter 7 bankruptcy petition filed
by the plaintiff in the United States Bankruptcy Court for the Southern
District of New York and receiving discharge in bankruptcy; based on
documentary evidence as to bankruptcy and discharge; and pursuant
thereto, failure to state a cause of action upon which relief can be granted;
and

C. Granting such other, further, and different relief as to this Court may deem
just, proper, and equitable.

3. The Exhibits submitted herewith are as follows:

Exhibit A: Summons and Complaint filed February 7, 2018;

Exhibit B: Verified Answer dated March 1, 2018;

Exhibit C: Notices of Claim filed November 2017;

Exhibit D: 50-H Hearing dated January 23, 2018;

Exhibit E: Plaintiff’s Bills of Particulars (“BP”);

Exhibit F: Plaintiff’s Examination Before Trial (“EBT”) dated February 8, 2019;

Exhibit G: Letter Transmitting Plaintiff’s EBT on March 4, 2019;

Exhibit H: Post-EBT Demand dated February 19, 2019;

Exhibit I: Note of Issue and Certificate of Readiness dated August 26, 2019;

Exhibit J: Paliseno Affirmation in Support of Motion to Strike Note of Issue dated

August 30, 2019 with attached NYSCEF Confirmation;

Exhibit K: Plaintiff counsel Affirmation identifying bankruptcy attorney with

authorization dated November 25, 2019;

Exhibit L: Plaintiff’s Response to Letter with Authorization for Ragues Law PLLC;

Exhibit M: Bankruptcy Court Record Received on January 27, 2020 from Ragues

Law PLLC;

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Exhibit N: March 6, 2020 Pacer Search of Bankruptcy Court Case Number 12826;

Case Year 2018; Case Number 18-12826; Case Title Sullivan, Brendan; Jurisdiction: BK

with copy of (1) Discharge of Debt; (2) Verification of Creditor Matrix and (3) Notice to

Recipients for Discharge;

Exhibit O: Additional Stipulations and Court Orders;

Exhibit P: Proposed Amended Answer with Affirmative Defenses

STATEMENT OF FACTS, PLEADINGS AND PROCEEDINGS SUPPORTING
AMENDMENT OF PLEADINGS AND DISMISSAL OF ACTION IN ITS ENTIRETY
FOR LACK OF STANDING, JUDICIAL ESTOPPEL AND FAILURE TO STATE A
CAUSE OF ACTION UPON WHICH RELIEF CAN BE GRANTED

4. Plaintiff commenced this lawsuit by filing a summons and complaint in the

Supreme Court, New York County on February 7, 2018 [NYSCEF Doc. No. 1], annexed as

Exhibit A, claiming that plaintiff was struck by an improperly operated lull, thereby asserting

multiple claims including Labor Law 240(1), 241(6), 200 and common law negligence and

seeking damages for personal injuries allegedly sustained by the plaintiff in a slip and fall

accident that occurred on October 18, 2017 at 7:30 a.m. on the Defendants’ Eastside Access

Project (“Project”) in New York, New York while he was working for Frontier Kemper, a non-

party to this action, in the East Cavern of the Project “on the Manhattan side by the back of the

house.” Defendants collectively interposed a Verified Answer on March 1, 2018, annexed as

Exhibit B.1

5. Prior to suit, Plaintiff, by counsel, served Notice(s) of Claim on City of New

York, New York City Transit Authority, and Metropolitan Transit Authority (Capital

1
A Stipulation between the parties dated February 13, 2019 was electronically filed on February 25, 2019 by
Plaintiff counsel by which the caption was to be corrected to properly identify Defendant Tutor Perini Building
Corp. as Tutor Perini Corporation. However, in subsequent court filings, the incorrect caption continued to be
applied. In a Stipulation of Partial Discontinuance With Prejudice dated July 31, 2019 electronically filed on,
Plaintiff discontinued the Labor Law Section 240 cause of action and claims as to certain Industrial Code Sections.
These Stipulations are annexed as Exhibit O.

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Construction Company) claiming that plaintiff was struck by an improperly operated lull. The

Notices of Claim were served on Metropolitan Transit Authority (“MTA”) and on Metropolitan

Transit Authority (Capital Construction Company) and The City of New York on November 13,

2017, and upon the New York City Transit Authority on November 14, 2017, copies of which

are annexed as Exhibit C. Plaintiff alleged in his complaint that he appeared for a 50-H Hearing

(“50-H”) with regard to said claims conducted by the City of New York, New York City Transit

Authority, and Metropolitan Transit Authority (Capital Construction Company) on “January 23,

2017” pursuant to Notice(s) of Claim served on November 14, 2017. Actually, the 50-H was

conducted on January 23, 2018. A copy of the Notice 50-H transcript is annexed as Exhibit D.

6. Plaintiff in his Verified Bill of Particulars (“BP”) dated May 30, 2018 alleged that

he was working as a Journeyman Union Sandhog Tunnel worker at the time of the occurrence,

and that subsequently he was totally disabled from his normal vocation and unable to return to

work for an indefinite time. In his Supplemental BP dated October 9, 2018, he alleged that he

sustained a fractured lumbar vertebra as a result of the accident culminating in a lumbar

laminectomy with Dr. Andrew Merola on October 2, 2018. The BPs are collectively annexed as

Exhibit E.

7. Plaintiff appeared for an Examination Before Trial on February 8, 2019. The

EBT Transcript is annexed as Exhibit F. At Plaintiff’s Examination Before Trial, Plaintiff was

asked the following questions to which he gave the following answers:

Q: Have you ever filed for bankruptcy?

A: Yes.

Q: Was that at any time after the accident?

A: Yes.

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Q: When was that?

A: September.

Q: Of which year?

A: This---last year. Sorry.

Q: September 2018?

A: 2018.

Q: To the best of your knowledge, was the lawsuit reported as an asset to the trustee

in bankruptcy?

A: Yes.

Q: Do you have an attorney representing you with regards to the bankruptcy?

A: Yes.

Q: Who is that attorney?

A: What the hell is his name? Ray –oh, my god –I can’t remember his last name.

Q: Were you referred to Ray by Sacks & Sacks or somebody else?

A: Somebody else?

Q: Do you know which court it’s pending, if it’s if in Eastern District or Southern

District or someplace else?

A: Southern.

Q: Would you happen to have something at home which would refresh your

recollection as to the last name of your attorney Ray?

A: Yes.

Q: With counsel’s permission, a space in the record?

A: Sure.

Q: You know what, I’ll follow up in writing.

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MR. ROBERTS: Okay.

MR. PALISENO: I’ll demand the name of the attorney and the
caption and index number of the bankruptcy.

[Ex. F, pp.175-176, 184]

8. The EBT transcript was forwarded to Plaintiff with letter seeking execution on

February 19, 2018. Exhibit G. At the same time, Defendants served a Post-EBT Demand which

requested, among other disclosures, identification of Plaintiff’s Bankruptcy Counsel,

authorization for his file documents from the Bankruptcy Court and the Docket Number of the

Bankruptcy Filing which were previously identified at the EBT. Exhibit H.

9. No response to these demands had yet been received when Plaintiff filed his Note

of Issue and Certificate of Readiness, a copy of which is annexed as Exhibit I on August 26,

2019. In attorney Paliseno’s affirmation in support of their motion to strike the Note of Issue and

Certificate of Readiness, Defendants presented as among other outstanding discovery that

Defendants had demanded the attorney, caption and index number of the bankruptcy filing of

September 2018, as there had been no response received as of the filing of the motion to strike

the action from the trial calendar dated August 30, 2019 [NYSCEF Doc. Nos. 20-28]. See

Paliseno Affirmation dated August 30, 2019, ¶6 and NYSCEF confirmation of motion filing

Doc. Nos. 20-28, annexed as Exhibit J. As a result, Plaintiff provided the name of Ragues Law

PLLC as part of opposition papers to the motion to strike dated September 25, 2019 together

with providing a letter with duly executed authorization allowing release of copies of the non-

privileged portion of legal file records in regard to the Plaintiff.. Exhibit K. Defendants then

corresponded with Ragues Law PLLC providing a copy of the authorization, annexed as Exhibit

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10. The attorney’s file information was received at the end of January 2020: it

included proof that Plaintiff filed a Petition of Bankruptcy for Chapter 11 on September 19, 2018

with a total of 53-pages, which document is annexed hereto as Exhibit M. Examination of the

Petition and accompanying documents revealed that Plaintiff did not report this lawsuit as an

asset to the trustee in bankruptcy.

11. Exhibit M included “Verification of Creditor Matrix” which was electronically

signed by Brendan Sullivan in the Document Number One, Page 1 of 51, appearing in Pacer for

Case Number 12826; Case Year 2018; Case Number 18-12826; Case Title Sullivan, Brendan;

Jurisdiction BK [Exhibit M, P. 1 of 51]. The Creditors were then listed on pages 2 and 3 and

included the following: Amex; Bankamerica; Barclays Bank Delaware; Capital One; Chase

Card; Citi; Syncb/Ashley Homestore; Syncb/gapdc; Syncb/Pc Richard; Td Bank N.A.; Tdrcs/

Ashley Homestore; Thd/Cbna [Exhibit M, P. 2, 3].

12. Although the only document provided by Ragues Law PLLC was the Bankruptcy

Petition of September 19, 2018, this court may take judicial notice that three months after the

filing of the bankruptcy petition, Plaintiff Brendan Sullivan received a Discharge of Debtor(s)

and Order of Final Decree by the United States Bankruptcy Court for the Southern District of

New York on December 29, 2019 from United States Bankruptcy Judge James L. Garrity, Jr.

which is accessible through PACER through the United States Bankruptcy Court. It is annexed

as Exhibit N.

13. The “Discharge of Debtor(s) and Final Decree” states:

A petition under title11, United States Code was filed by or against the Debtor(s) on

9/19/18; an order for relief was entered under Chapter 7; no order denying a discharge

has been granted.

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It appearing that the Debtor(s) is entitled to a discharge and the estate of the above named

Debtor(s) has been fully administered.

IT IS ORDERED:

 The Debtor(s) is granted a discharge under 11 U.S.C. §727.

 Salvatore LaMonica is discharged as he Trustee of the Debtors estate and the

bond is cancelled.

 The chapter 7 case of the above-named Debtor(s) is closed.

[Exhibit N]

14. Thus, on December 27, 2018, bankruptcy court entered a no-asset discharge of

Plaintiff’s debts.

15. Appearing in the PACER search along with the “Discharge of Debtor(s) and Final

Decree” of Debt by the US Bankruptcy Court is a list of the “Notice Recipients” submitted to

the BNC (Bankruptcy Noticing Center) which lists 19 persons and entitled. Noticeably absent is

any reference to this lawsuit, any entities with an interest in the proceeds of this action or any

attorneys to this lawsuit, plaintiff or defendant. The Recipients submitted to the BNC included:

Brendan Sullivan 530

Salvatore LaMonica LaMonica Herbst & Maniscalco, LLP

New York State Tax Commission NY 12205--D300

United States Attorney's Office Southern District of New York

Unit 86 Chambers Street, Third Floor New York, NY 10007

N.Y. State Unemployment Insurance Fund

New York City Dept. Of Finance 345 Adams Street, 3rd Floor Attn: Legal

Affairs - Devora

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Amex

Bankamerica

Barclays Bank

Capital One

Chase Card

Citi

PRA Receivables Management, LLC

Syncb/Pc Richard

Syncb/ashley Homestore

Syncb/gapdc

Td Bank NA

Tdrcs/ashley Homestore

Tdrcs/Cbna PO Box 6497 Sioux Falls, SD 57117-6497

Bankruptcy/Special Procedures Section

[Exhibit N]

16. As these evidentiary proof reveals, the Plaintiff having failed to disclose and

identify this claim and lawsuit as an asset of his estate such that it did not factor into his final

discharge, these assets remain with the bankruptcy estate, not of plaintiff who has been

discharged in bankruptcy. Through the course of discovery and investigation into this matter,

additional facts were obtained necessitating both amendment of Defendants’ affirmative defenses

and the immediate dismissal of this action.

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ARGUMENT

Point I

RIGHT TO AMEND ANSWER IS FREELY GIVENAND IS PROPERLY GRANTED
UNDER THE FACTS OF THIS CASE

17. Amendment of pleading by Defendants is warranted pursuant to CPLR §3025(b)

and (c ). The affirmative defenses which support grant of dismissal of this action at this time

include that upon plaintiff’s discharge in bankruptcy, Plaintiff lacks the capacity/standing to

pursue this action, and is judicially estopped pursuant thereto, and Plaintiff’s Complaint fails to

state a claim upon which relief can be granted. The latter affirmative defense, failure to state a

cause of action upon which relief can be granted, is presently an affirmative defense in the

action, and it forms a basis for dismissal together with the affirmative defenses sought to be part

of the proposed amended answer with affirmative defenses.

18. The affirmative defenses to be added to the answer are as identified in the

Verified Amended Answer with Affirmative Defenses as follows:

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE:

Plaintiff lacks of capacity/standing to sue due to discharge in bankruptcy.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiff is judicially stopped from pursuing this action;

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff’s action is barred by documentary evidence.

See Exhibit P.

19. CPLR §3025(b) provides that

A party may amend his pleading, or supplement it by setting forth
additional or subsequent transactions or occurrences, at any time

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by leave of court or by stipulation of all parties. Leave shall be
freely given upon such terms as may be just including the granting
of costs and continuances

20. CPLR §3025(c) provides that

(c) Amendment to Conform to the Evidence. The court may
permit pleadings to be amended before or after judgment to
conform them to the evidence, upon such terms as may be just
including the granting of costs and continuances

21. The proposed amendment to defendants’ answer adding these affirmative

defenses is annexed as Exhibit P. It is well settled that leave to amend pleadings is to be liberally

granted in the interests of justice. In this action, the Plaintiff’s own failure to disclose the

information necessary to warrant these affirmative defenses rendered Defendants incapable of

asserting same until post-Note of Issue, which Note of Issue was filed prior to the necessary

disclosures. See Exhibits I through O.

22. In the instant case, the bankruptcy filing and discharge documented in the U.S.

Bankruptcy Court [Exhibit N and O] were subsequent transactions which merit amendment of

pleading under both subsections.

23. Accordingly, leave is appropriate as there is no insufficiency nor prejudice or

surprise the opposing party, and is not patently devoid of merit (see Santori v. Met Life, 11

A.D.3d 597, 598, 784 N.Y.S.2d 117 [2004], citing Ortega v. Bisogno & Meyerson, 2 A.D.3d

607, 769 N.Y.S.2d 279 [2003]; AYW Networks v. Teleport Communications Group, 309 A.D.2d

724, 765 N.Y.S.2d 379 [2003], lv. dismissed 1 N.Y.3d 566, 775 N.Y.S.2d 783, 807 N.E.2d 896

[2003]; Leszczynski v. Kelly & McGlynn, 281 A.D.2d 519, 722 N.Y.S.2d 254 [2001] ). While a

decision whether to grant such leave is within the court’s sound discretion, Edenwald Contr. Co.

v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983]; see also

Haller v. Lopane, 305 A.D.2d 370, 759 N.Y.S.2d 504 [2003]), where an amendment is necessary

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to adhere to U.S. Bankruptcy Law which preempts state law, it is also warranted as a matter of

law.

24. Moreover, prejudice to a non-moving party is not established merely because an

amended pleading will defeat his or her claim (see Schrader v. Carney, 180 A.D.2d 200, 586

N.Y.S.2d 687 [1992]).

25. The Proposed Amended Answer is annexed as Exhibit P.

26. Under these circumstances, it is respectfully respected that the court permit

service nunc pro tunc and by this submission as not to require an additional service, particularly

in light of the fact that due to these affirmative defenses, plaintiff’s action must be dismissed as a

matter of law. Indeed, under these circumstances, leave freely given is warranted, and there is no

basis for granting of costs and continuances.

27. Defendants had no reason to include these affirmative defenses as part of the

pleadings in their initial answer as the bankruptcy petition had not yet been filed back in March

2018 [Exhibit B]. It was filed in September 2018 [Exhibit M].

28. Further, Plaintiff misled Defendants at his examination before trial in February

2019 by erroneously responding in the affirmative when asked if he had disclosed this action in

his bankruptcy filing [Exhibit F, pp. 175, 176]. He then failed to timely respond to demanded

disclosures as to the bankruptcy as requested both at the deposition in February 2019 [Exhibit F,

pp. 175, 176, 184], in Post-EBT Discovery Demands also served in February 2019 [Exhibit G],

and in subsequent compliance order [See Order dated June 7, 2019 annexed as part of Exhibit

O]. It was not until motion practice seeking to strike the Plaintiff’s Note of Issue and Certificate

of Readiness [Exhibits I through M] that Plaintiff finally disclosed information about his

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bankruptcy proceeding which enabled Defendants to learn the truth that the Plaintiff had failed to

disclose this claim and action as part of his estate.

29. Based upon the foregoing, in the interests of justice, and pursuant to federal law,

plaintiff presently fails to state a cause of action upon which relief can be granted. It behooves

the court to grant defendants’ motion so as to amend the answer to include these affirmative

defenses, and dismiss the action pursuant thereto.

i. Affirmative Defenses of Lack of Standing and Judicial Estoppel Are Foundation For
Dismissal Under the Facts of This Case

30. The affirmative defense of Plaintiff lacking the capacity/standing to bring suit

exists due to his discharge in bankruptcy, and is ripe for determination and grant of relief at this

juncture. Plaintiff’s lawsuit is property of his bankruptcy estate, thus depriving Plaintiff of

standing to pursue it. Because an unscheduled claim remains the property of the bankruptcy

estate, the debtor lacks standing to bring or maintain such claims after emerging from

bankruptcy, and the claims must be dismissed. See Rosenshein v. Kleban, 918 F.Supp. 98, 102

[S.D.N.Y.1996]; In re Drexel Burnham Lambert Group, Inc., 160 B.R. 508, 514 [S.D.N.Y.1993].

In other words, only the bankruptcy trustee has standing to pursue any lawsuit the debtor could

have initiated or did initiate before filing for a chapter 7 bankruptcy. A debtor's failure 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. Hansen v. Madani, 263 A.D.2d 881 (3d Dept 1999).

31. Plaintiff’s lawsuit is also barred by judicial estoppel, which, as addressed by the

New York Court of Appeals, “provides that where a party assumes a position in a legal

proceeding and succeeds in maintaining that position, that party may not subsequently assume a

contrary position because its interests have changed.” McIntosh Bldrs v. Ball, 264 A.D.2d 869,

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870 (3d Dept 1999); Popadyn v. Clark Const. & Prop. Maint. Servs., Inc., 49 A.D.3d 1335, 1336

(4th Dept. 2008). See also, McManus v Marte, 2018 N.Y. Misc. LEXIS 3292 (Nassau County

2018) citing McIntosh, supra at 870. "Judicial estoppel prevents a party from prosecuting claims

not disclosed in a bankruptcy proceeding that resulted in the party's discharge." Id.; See also,

Azuike v Mellon, 962 F Supp 2d 591, 598 (SDNY 2013). In the context of bankruptcy, judicial

estoppel prevents a party from prosecuting claims not disclosed in a bankruptcy proceeding if the

proceedings culminated in a discharge in favor of the debtor. McIntosh at 870, citing Cafferty v.

Thompson, 223 A.D.2d 99, 102 (3d Dep’t 1996).

32. Accordingly, Defendants is entitled to dismissal as a matter of law because

Plaintiff lacks standing to maintain this lawsuit and is judicially estopped from doing so in light

of his discharge in bankruptcy as is evinced by the court filing in the U.S. Bankruptcy Court for

the Southern District of New York dated December 27, 2018 [Exhibit N].

ii. Affirmative Defense of Chapter 7 Discharge In Bankruptcy is Foundation For
Dismissal Under the Facts of This Case

33. To understand the full import of judicial estoppel in a Chapter 7 bankruptcy

context, an overview of a Chapter 7 case is helpful. “The commencement of a case under the

Bankruptcy Code creates an estate which, with limited exceptions, consists of all of the debtor’s

property wherever located. 11 U. S. C. § 541.” Ohio v. Kovacs, 469 U.S. 274, 284 n. 12 (1985).

To commence a Chapter 7 case, the debtor must file various schedules, including a financial

statement with a schedule of assets. Kleban, supra at 102, citing 11 U.S.C. §521(1); See also In

re Wickard, 455 B.R. 628, 631 [Bankr. W.D. Mich. 2011]. “A basic tenet of bankruptcy law is

that all assets of the debtor, including all pre-petition causes of action belonging to the debtor,

are assets of the bankruptcy estate that must be scheduled for the benefit of creditors.” Kunica v.

St. Jean Financial, Inc., 233 B.R. 46, 52 [S.D.N.Y. 1999]; See also Seward v. Devine, 888 F.2d

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957, 963 [2d Cir.1989]; Kleban, supra at 102. The “integrity of the bankruptcy system depends

on full and honest disclosure by debtors of all their assets.” Kleban, supra at 104.

34. Until the Bankruptcy Court takes action based on the bankruptcy petitioner’s

representations within the proceeding, such as closing his case, or discharging his debts, it has

not truly adopted his inconsistent position. See Ibok v. Siak-Sector Inc., 2011 U.S. Dist. Lexis

7312, 2011 WL 293757 (SDNY 2011) ("The bankruptcy court, in discharging Ibok and closing

his case, adopted Ibok's stated position that he did not have any outstanding legal claims.");

Rosenshein v. Kleban, supra at 104-05 ("adoption" occurred with court's approval of debtor's

reorganization plan and discharge of debts). In the case at bar, the Bankruptcy Court took action

based on the bankruptcy petitioner’s representations within the proceeding by closing his case

and discharging his debts. Goldson v. Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP,

2014 U.S. Dist. LEXIS 68205 (SDNY 2014). See 11 U.S.C. § 554. “[P]roperty that is not

formally scheduled is not abandoned and therefore remains part of the estate." Supra at 102

(citing 11 U.S.C. § 554(d)); see also In re Drexel, 160 B.R. at 514. This claim and lawsuit

remains part of the estate such that Plaintiff has no standing to proceed with it before this court.

35. Because an unscheduled claim remains the property of the bankruptcy estate, the

debtor lacks standing to bring or maintain such claims after emerging from bankruptcy, and the

claims must be dismissed. See Kleban, supra at 102; In re Drexel, 160 B.R. at 514.

36. A bankruptcy case is closed only after the estate is fully administered and the

bankruptcy court has discharged the trustee. Kassner v. 2nd Avenue Delicatessen, 2005 U.S. Dist.

LEXIS 7714, 2005 WL 1018187, at *4 (SDNY 2005). While the case remains open, the debtor

lacks standing to pursue any claim that is part of the bankruptcy estate. Id at [WL] *3.

Moreover, even after a bankruptcy case has closed, the debtor continues to lack standing to

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pursue any claim not abandoned by the estate. Ibok, 2011 U.S. Dist. LEXIS 7312, 2011 WL

293757, at *4 (citing Coffaro v. Crespo, 721 F. Supp. 2d 141, 148 (E.D.N.Y. 2010); Kassner,

supra at [Lexis] 7714, [WL] at *3) (emphasis added). Goldson, supra at [Lexis] *12-13.

37. The affirmative defense of documentary evidence is also warranted. In order to

prevail on a defense founded on documentary evidence, the document relied on must definitively

dispose of plaintiff’s claim. Greenwood Packing Corp. v Associated Tel. Design, Inc., 140

A.D.2d 303, 527 N.Y.S.2d 811 (2d Dep't 1988). This court must take judicial notice of the

plaintiff’s Discharge of Debt in Bankruptcy is a public record which definitely disposes of

plaintiff’s action as addressed herein [Exhibit O].

38. Thus, this action is ripe for dismissal under CPLR §3211 (a) (1) (3) and (5) upon

amendment of pleadings as aforesaid pursuant to CPLR §3025. Moreover, each of these

affirmative defenses and the proofs gathered in this action support dismissal under CPLR

3211(a) (7) as well.

39. Point II

Point II

DISMISSAL OF THIS ACTION IS MANDATED AS PLAINTIFF’S ACTION FAILS
BASED UPON CPLR SECTION 3211(A) (1) (3) (5) AND (7).

40. CPLR §3211 (a) provides for dismissal of one or more causes of action asserted

against him on grounds delineated in the subsection including but not limited to providing for

dismissal as follows: CPLR 3211§ (a)(1) a defense is founded upon documentary evidence;

§3211 (a) (3) the party asserting the cause of action has not legal capacity to sue; §3211 (5) the

cause of action may not be maintained because of (among other circumstances) discharge in

bankruptcy, and CPLR §3211(a)) (7) which provides for dismissal for failure to state a cause of

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NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/13/2020

action upon which relief can be granted. Dismissal is mandated as to all of plaintiff’s claims

pursuant to each of these subsections.

41. Plaintiff’s claims upon which this action is based arose eleven months before he

filed for Chapter 7 bankruptcy protection. In fact, Plaintiff filed this lawsuit before he filed his

bankruptcy petition. His claims, then, are unquestionably property of his bankruptcy estate.

Santonocito v. Moskowitz, Passman & Edelman, 2012 NY Slip Op 30580 (“When a debtor files

for bankruptcy protection, this creates an ‘estate’ comprised of all legal and equitable interests of

the debtor as of the commencement of the case”) (11 USC § 541[a][1])); See also DeLarco v.

DeWitt, 136 A.D.2d, 406, 408 [1988] (“upon the filing of a voluntary bankruptcy petition, all

property which a debtor owns or subsequently acquires, including a cause of action, vests in the

bankruptcy estate”); Light v. Boussi, 867 N.Y.S.2d 17 [N.Y. Sup. June 19, 2008]; Hansen v.

Mandani, 263 A.D.2d 881, 882 [1999]; Reynolds v. Blue Cross of Northeastern NY, 210 A.D.2d

619, 619-620 [1994]. A pre-petition injury qualifies as a legal interest, within the meaning of

the statute. Santonocito, citing In re Corbi, 149 B.R. 325, 329 [Bankr.E.D.N.Y.1993].

42. Lack of Standing/Capacity. Since the claim remains property of the estate, a

debtor lacks standing to bring or maintain a lawsuit in connection with unscheduled claims after

emerging from bankruptcy, and if he does, the lawsuit must be dismissed. Id. citing Crawford v.

Franklin Credit Management Corp., supra, citing Kunica, 233 B.R. at 53; see also Whelan v.

Longo, 808 N.Y.S.2d 95 [2d Dept. 2005](the failure of a plaintiff to di

Case Info

Judge

Frank P Nervo Track Judge’s New Case

Case No.

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Document Filed Date

March 13, 2020

Case Filing Date

February 07, 2018

County

Parties

Brendan Sullivan Plaintiff
CHERKIS, LOUISE M. Attorney for the Defendants
CITY OF NEW YORK Defendant
LEVI, MARK D Attorney for the Defendants
MAYER, DAVID H Attorney for the Plaintiff
METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) Defendant
METROPOLITAN TRANSPORTATION AUTHORITY Defendant
SACKS, KENNETH Attorney for the Plaintiff
THE NEW YORK CITY TRANSIT AUTHORITY Defendant
TUTOR PERINI BUILDING CORP. Defendant

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