Opinion
# 2018-050-002 Claim No. 121353 Motion No. M-90879 Motion No. M-91018 Motion No. CM-91127
01-11-2018
LINDA CRANE, AS ADMINISTRATRIX OF THE ESTATE OF ADRIAN RICHARD CRANE AND LINDA CRANE, INDIVIDUALLY v. THE STATE OF NEW YORK
Seigel & Coonerty, LLP By: Michael Peters, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Kyriakoula Fatsis, Assistant Attorney General
Synopsis
Claimant moves to substitute a Chapter 7 bankruptcy trustee in place of claimants pursuant to CPLR 1018 and 1021 and also moves to extend claimants' time to file a note of issue. Defendant opposed both motions and moved to dismiss the claim. The Court granted defendant's motion and the claim was dismissed.
Case information
| UID: | 2018-050-002 |
| Claimant(s): | LINDA CRANE, AS ADMINISTRATRIX OF THE ESTATE OF ADRIAN RICHARD CRANE AND LINDA CRANE, INDIVIDUALLY |
| Claimant short name: | CRANE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121353 |
| Motion number(s): | M-90879, M-91018, CM-91127 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Seigel & Coonerty, LLP By: Michael Peters, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Kyriakoula Fatsis, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 11, 2018 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants move to substitute a Chapter 7 bankruptcy trustee in place of claimants pursuant to CPLR 1018 and 1021 and also move to extend claimants' time to file the note of issue. Defendant opposes both motions and cross-moves to dismiss the claim in its entirety pursuant to CPLR 3211 (a) (3) alleging that claimants lacked legal capacity to commence the instant action. Defendant also moves in the alternative to dismiss various causes of action from the claim pursuant to Court of Claims Act (CCA) § 11 (b) and § 206.6 of the Uniform Rules of the Court of Claims for lack of subject matter jurisdiction and to strike certain language from the verified bill of particulars and supplemental verified bill of particulars.
The underlying facts in this matter concern the diagnosis and treatment of Adrian Richard Crane at Stony Brook University Hospital between May 29, 2010 and July 9, 2010. Linda and Adrian Richard Crane served a notice of intention to file a claim upon defendant on August 23, 2010. The notice of intention asserted medical malpractice as well as the derivative claim of Linda Crane for loss of services. On November 29, 2010, Adrian Richard Crane and Linda Crane jointly filed for Chapter 7 bankruptcy. This cause of action for medical malpractice was listed as an asset in the bankruptcy filing.
On March 4, 2012, Adrian Richard Crane died allegedly as a consequence of the negligent medical treatment provided by defendant. Letters of Limited Administration were issued to Linda Crane by the Suffolk County Surrogate's Court on May 14, 2012. Linda Crane, as administrator of the estate of Adrian Richard Crane and individually, filed a claim on May 25, 2012 asserting various forms of negligence, lack of informed consent, medical malpractice, wrongful death and loss of services. A verified answer was served on or about July 2, 2012 followed by service of an amended verified answer on or about July 17, 2012 and discovery ensued.
On or about May 13, 2013, the bankruptcy trustee moved for an order from the Bankruptcy Court directing that he be substituted as a claimant in this action. On June 16, 2013, United States Bankruptcy Judge Dorothy Eisenberg issued an order directing the Medical Malpractice Counsel (the law firm of Geller, Siegel & Coonerty LLP, which was previously authorized by the Bankruptcy Court to be retained with respect to this action) to make appropriate motions to remove Linda Crane as claimant from this action and to substitute the bankruptcy trustee as claimant.
Defendant moved to dismiss this action on or about July 20, 2016 pursuant to CPLR 3211 (a) (3) alleging that claimants had not disclosed the cause of action in the bankruptcy petition filed on November 29, 2010 and as such lacked capacity to commence the action. On October 18, 2016, this Court denied that motion without prejudice, having found that the alleged "nondisclosure in the bankruptcy case is unsupported on the present record" which lacked sufficient documentary proof in admissible form. Now, claimant argues initially that defendant is impermissibly seeking to renew a prior motion to dismiss and relitigating issues already decided by the Court. Despite claimant's assertion to the contrary and as discussed further below, the Court has not previously addressed defendant's current argument and there is no "law of the case" it is constrained to follow.
In the cross motion to dismiss, defendant argues that the voluntary bankruptcy proceeding commenced in November 2010 vested legal capacity to initiate suit in the bankruptcy estate (a point not contested by claimant), and therefore when Linda Crane filed the claim on May 25, 2012 as administrator of her husband's estate and individually, she was without standing to do so. Defendant argues the claim is thus jurisdictionally defective and must be dismissed. The issue of whether Linda Crane, as administrator of her late husband's estate and individually, was stripped of the legal capacity to file the 2012 claim by virtue of having filed for bankruptcy in 2010 was neither raised in the previous motion to dismiss nor addressed in the resulting decision and order (see Crane v State of New York, UID No. 2016-050-065 [Ct Cl, Lynch, J., Oct. 28, 2016]). Claimant argues that substitution of the bankruptcy trustee as claimant in this action would cure "whatever capacity issues might exist" and further that, if the claim must be dismissed, claimant should be permitted to recommence this action pursuant to CPLR 205 (a).
Analysis of the three motions currently before the Court begins with defendant's cross motion argument regarding lack of capacity to sue because, if correct, it would deprive this Court of jurisdiction over the claim in its entirety. CCA § 11 establishes the requisite procedure for commencing a cause of action in the Court of Claims. As suit against the State is allowed only by explicit waiver of its sovereign immunity, the failure to strictly comply with the filing or service provisions of CCA § 11 deprives the court of subject matter jurisdiction (see Kolnacki v State of New York, 8 NY3d 277 [2007]; Langner v State of New York, 65 AD3d 780 [3d Dept 2009]). CCA § 11 (a) (i) states that the "claim shall be filed with the clerk of the court; and . . . a copy shall be served . . . upon the attorney general" within the applicable time limits. Thus, a notice of intention to file a claim, by itself and without more, does not constitute commencement of an action (see Dreger v New York State Thruway Authority, 81 NY2d 721 [1992]; CCA §§ 10, 11). Here, claimants timely served the notice of intention on August 23, 2010 and filed the claim on May 25, 2012. The issue then is the effect of the intervening joint bankruptcy petition filing of November 29, 2010.
11 USC § 541 provides that the commencement of a Chapter 7 bankruptcy case creates an estate and that such estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case" (11 USC § 541 [a] [1]). Further, after a bankruptcy proceeding has been initiated, a debtor's interest in property acquired after the commencement of the case is also transferred into the bankruptcy estate (see 11 USC § 541 [a] [7]). Accordingly, after filing a petition for bankruptcy a debtor lacks the capacity to commence an action as all property, including any cause of action, has vested in the bankruptcy estate (see Pinto v Ancona, 262 AD2d 472 [2d Dept 1999]; Hansen v Madani, 263 AD2d 881 [3d Dept 1999]).
As discussed above, service of a notice of intention alone does not constitute commencement of a claim. Rather, the notice of intention to file a claim extends the time period within which a claim may be filed and a suit commenced. Linda and Adrian Richard Crane clearly had standing when they served their timely notice of intention to file a claim but upon the filing of their bankruptcy petition on November 29, 2010, legal capacity to prosecute their claim vested solely in the bankruptcy trustee who "stood in their shoes as legal representative of the estate and had the legal capacity to commence and prosecute [the cause] of action arising prior to the bankruptcy" (Reynolds v Blue Cross of Northeastern New York, 210 AD2d 619 [3d Dept 1994]). Thus, when Linda Crane filed the claim herein on behalf of her husband's estate and herself on May 25, 2012, she had no legal authority to do so. Further, substitution of the trustee as claimant cannot now cure the fatal jurisdictional incapacity (see Reynolds v Blue Cross of Northeastern New York, 210 AD2d 619 [3d Dept 1994]; Hansen v Madani, 263 AD2d 881 [3d Dept 1999]). As the claim is essentially a nullity, the bankruptcy trustee cannot be substituted pursuant to CPLR 1018 or CPLR 1021. This Court has no jurisdiction over the claim herein as it was never properly commenced and it must be dismissed.
In the event that defendant's cross motion were granted and the claim dismissed, claimants also move for permission to refile the claim pursuant to CPLR 205 (a). Except in circumstances not relevant here, CCA § 10 (6) and CPLR 205 (a) provide that "a party whose 'timely commenced' action has been dismissed and is now time-barred may apply to the court for permission to recommence the action" (see Dreger v New York State Thruway Authority, 81 NY2d 721 [1992], citing CPLR 205 (a), emphasis added). As discussed hereinbefore, CCA § 11 requires that both service and filing of a claim occur within the applicable limitations period to constitute timely commencement. As neither claimants nor the bankruptcy trustee who would be substituted met the requirements of CCA § 11 within the time period prescribed by article 2 of the CPLR, the action was "not timely commenced and relief under CPLR 205 (a) is not available" (Dreger v New York State Thruway Authority, 81 NY2d 721 [1992]). Given this conclusion, defendant's remaining arguments as to the adequacy of the claim and its various causes of action are not reached.
In accordance with the foregoing, claimants' motion to substitute is denied (M-90879), defendant's cross-motion to dismiss is granted (CM-91127) and the claim is dismissed (Claim No. 121353). Claimants' motion (M-91018) to extend claimants' time to file the note of the issue is deemed moot.
January 11, 2018
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the claimants' motions and the defendant's cross motion: 1. Notice of Motion, Affirmation in Support with Exhibits (M-90879). 2. Notice of Motion, Affirmation in Support (M-91018). 3. Notice of Cross Motion, Affirmation in Opposition with Exhibits (CM-91127). 4. Reply Affirmation (M-90879, M-91018, CM-91127). 5. Affirmation in Reply (M-90879, M-91018, CM-91127).