STORINI v. HORTIALES (2005)

Plaintiff purportedly commenced this action to recover damages for personal injuries by filing a summons with notice with the Onondaga County Clerk on October 9, 2001.   Prior to that date, defendant had filed a Chapter 13 bankruptcy petition.   That petition was dismissed by order dated July 2, 2002, and defendant filed a Chapter 7 bankruptcy petition on October 8, 2002.   Defendant was discharged in bankruptcy on February 25, 2003, and the discharge contains a certificate of service upon plaintiff.   Defendant served a notice of appearance upon plaintiff's attorney on February 11, 2002, accompanied by a letter indicating that the bankruptcy petition was pending.   Plaintiff filed a new summons and complaint on January 12, 2004, but used the index number from the earlier action.   Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(2), (5) and (8).

 Supreme Court erred in denying defendant's motion.   The Bankruptcy Code states that the filing of a bankruptcy petition automatically operates to stay “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title” (11 USC § 362[a][1] ).   While we note the split of authority on the subject, we conclude that the clear language of the Bankruptcy Code prohibited the filing of a complaint against defendant during the pendency of the bankruptcy action (see Bell v. Niagara Mohawk Power Corp., 173 Misc.2d 1042, 1044-1045, 662 N.Y.S.2d 682;  see also Rexnord Holdings v. Bidermann, 21 F.3d 522, 527 [2d Cir.1994];  In re Schwartz, 954 F.2d 569, 570-571 [9th Cir. 1992];  Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 372-373 [10th Cir.1990];  In re 48th St. Steakhouse, 835 F.2d 427, 431 [2d Cir. 1987], cert. denied 485 U.S. 1035, 108 S.Ct. 1596, 99 L.Ed.2d 910;  cf. Kleinsleep Prods. v. McCrory Corp., 271 A.D.2d 411, 412, 708 N.Y.S.2d 296;  cf. also Winters v. Mason Bank, 94 F.3d 130, 133-134 [4th Cir. 1996];  In re Siciliano, 13 F.3d 748, 750-751 [3d Cir.1994];  Picco v. Global Mar. Drilling Co., 900 F.2d 846, 849-850 [5th Cir.1990];  In re Albany Partners, 749 F.2d 670, 675 [11th Cir.1984] ).   The purported filing was therefore a nullity, and the motion to dismiss should have been granted.   Furthermore, upon filing a new summons with a complaint, plaintiff was required to purchase a new index number, and his failure to do so also rendered the second attempt to commence the action a nullity (see Murray v. Hendrickson, 16 A.D.3d 1058, 792 N.Y.S.2d 754, 2005 WL 628822 [Mar. 18, 2005];  Chiacchia & Fleming v. Guerra, 309 A.D.2d 1213, 1214, 765 N.Y.S.2d 134, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: