MESSER v. HUGHES (2024)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about August 16, 2023, which denied defendants’ motions to amend their answers to include affirmative defenses and, upon amendment, to dismiss plaintiff's complaint based on her lack of capacity to sue, and granted plaintiff's motion to substitute the bankruptcy trustee in her place and stead, unanimously reversed, on the law, without costs, defendants’ motions granted, and plaintiff's motion denied.  The Clerk is directed to enter judgment accordingly.

Plaintiff Stephanie Rios filed for bankruptcy in May of 2019, and that proceeding is ongoing.  On or about March 19, 2020, Stephanie Rios and Luis Rios commenced an action against defendants alleging, among other things, medical malpractice.

Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including claims and causes of action, vests in the bankruptcy estate (see Dynamics Corp. of Am. v. Marine Midland Bank–N.Y., 69 N.Y.2d 191, 195–196, 513 N.Y.S.2d 91, 505 N.E.2d 601 [1987];  Lightning Capital Holdings LLC v. Erie Painting & Maintenance, Inc., 149 A.D.3d 1229, 1230, 51 N.Y.S.3d 680 [3d Dept. 2017]).  Thus, when plaintiff filed for bankruptcy, her claims against defendants became property of the bankruptcy estate and only the trustee had standing to commence and prosecute the claims in the instant action (see Reynolds v. Blue Cross of Northeastern N.Y., 210 A.D.2d 619, 620, 620 N.Y.S.2d 164 [3d Dept. 1994];  Quiros v. Polow, 135 A.D.2d 697, 699–700, 522 N.Y.S.2d 596 [2d Dept. 1987], lv dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 46 [1988]).

Since this action was commenced by a party without standing to sue, dismissal is required (see Burbacki v. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 172 A.D.3d 1300, 1302, 99 N.Y.S.3d 671 [2d Dept. 2019];  see also Hansen v. Madani, 263 A.D.2d 881, 882–883, 693 N.Y.S.2d 332 [3d Dept. 1999]).  This flaw cannot be cured by a simple amendment substituting the trustee in place and stead of plaintiff debtor (see Goldberg v. Camp Mikan–Recro, 42 N.Y.2d 1029, 398 N.Y.S.2d 1008, 369 N.E.2d 8 [1977];  Matter of C & M Plastics, Inc. [Collins], 168 A.D.2d 160, 162, 571 N.Y.S.2d 343 [3d Dept. 1991]).  The dismissal, however, is without prejudice, and the parties’ arguments concerning CPLR 205(a) are premature until such a time as the trustee commences an action.