DELANEY v. HC2 INC (2023)

Order, Supreme Court, New York County (Richard Latin, J.), entered December 22, 2022, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's complaint, in which he alleged that defendant improperly terminated his employment in violation of Labor Law § 740, was properly dismissed because plaintiff lacks legal capacity to sue (CPLR 3211[a][3]).  Plaintiff filed for Chapter 7 bankruptcy after he was terminated and the trustee in the bankruptcy proceeding settled his then-pending Labor Law § 740 counterclaim against defendant (see Delaney v. Messer, 2023 WL 2614099, *11–12, 2023 U.S. Dist. LEXIS 50217, *32–35 [E.D.N.Y., Mar. 20, 2023, 22–CV–4805 (AMD)]).  Once plaintiff filed for bankruptcy, the trustee stood in his shoes as legal representative of the estate and had the legal capacity to commence and prosecute plaintiff's Labor Law § 740 claims, which arose before the bankruptcy proceeding (see Moncho v. Miller, 200 A.D.3d 533, 533–534, 160 N.Y.S.3d 216 [1st Dept. 2021]).  Plaintiff's argument that he may maintain this action based on his claim that HC2 blacklisted him after his termination from his employment is unavailing.  Plaintiff's claims in this action are based on the same allegations that he made in the settled matter, i.e., that he complained to HC2 in March 2020, before he commenced the bankruptcy proceeding, that it was permitting employees to work with “flu-like symptoms,” and that he requested but was denied the opportunity to work from home or to be paid to stay at home.

We have considered plaintiff's remaining arguments and find them unavailing.