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Liberatore v. Greuner

Supreme Court, New York County

December 23, 2016

Maria Angeles Liberatore, Plaintiff,
David Greuner, Defendants.

          Attorney for Plaintiff: Kasowitz, Benson, Torres & Friedman LLP (James J. Stricker, Esq.)

          Attorney for Defendant: Kirschenbaum & Kirschenbaum, P.C. (Caroline Wallitt, Esq.)

          Alice Schlesinger, J.

         This is a motion for summary judgement in an action involving claims of medical malpractice, conversion, and fraud. Defendant David Greuner (Greuner) seeks summary judgment, under CPLR 3212, arguing that plaintiff lacks standing, as her claims are assets of her Chapter 7 Bankruptcy trustee. Further, defendant argues that plaintiff's medical malpractice and conversion claims are barred by the statute of limitations, and that her fraud claim must be dismissed as duplicative of the medical malpractice claim.


         When plaintiff Maria Angeles Liberatore (Liberatore) met defendant, she was, by her own admission, already addicted to Demerol, the pain-killing opioid (Liberatore aff, ¶ 3). Liberatore, in discussing the history of her addictions, states that she suffered a serious car accident in 1983, which caused her chronic pain that she was, for years, able to deal with through exercise and minimal medication (id.). Then, in 2009, she began receiving injections of Demerol, to which she gradually became addicted (id.). Despite her addiction, she states that she was functioning as a real estate developer and as someone with an active social life (id., ¶ 3). In June 2010, plaintiff presented at an emergency room and was denied Demerol (id. at 5).

         Plaintiff then hired defendant through a company he co-owned called "Elite House Calls, MD" (id., ¶ 6; Greuner aff, ¶ 4). [1] Next, plaintiff states that:

"David Greuner became my drug dealer, regularly supplying me with Demerol, either personally or by sending his girlfriend or others to administer the drugs. While initially I would receive a daily injection from Greuner, it soon increased, to a point when he or his accomplices would inject me multiple times a day, charging me thousands of dollars"

(Liberatore aff, ¶ 7).

         Plaintiff submits credit card and banking records showing that she paid Greuner -personally or through Elite House Calls, or one of its corporate siblings, [2] - more than $244, 000 in an eleventh-month period between September 2010 and August 2011. It seems that in August 2011, plaintiff ran out of money. With no money left to take, plaintiff states that defendant, "and his girlfriend took expensive purses, an expensive watch and other items from me in return for his drugs" (id., ¶ 7). Plaintiff alleges that she can't remember when she stopped seeing Greuner, but she submits pharmacy records indicating that he was still prescribing Demerol and other drugs for her as late as March 12, 2012.

         Having run out of money, plaintiff filed for Chapter 7 bankruptcy on August 15, 2011 in U.S. Bankruptcy Court for the Eastern District of Pennsylvania. In the bankruptcy action, plaintiff did not list her potential claims against Greuner as an asset on her Schedule B. Plaintiff attributes this to a diminished mental capacity at the time (id., ¶ 21). Although she managed to file a bankruptcy proceeding, plaintiff's capacity was allegedly effected by her opioid addiction.

         Plaintiff filed her summons with notice in this action on December 8, 2015. On January 27, 2016, she filed her complaint. Her first and second causes of action sound in medical malpractice, while the third is for conversion, and the fourth is for fraud.


         I. STANDING

         Plaintiff has submitted a copy of a "Notice of Proposed Abandonment of Property of the Estate" from Gary Seitz (Seitz), the Chapter 7 trustee of the estate in plaintiff's bankruptcy. The notice was filed on April 21, 2016 in the bankruptcy court. Seitz stated broadly that "[p]ursuant to Section 554 of the Bankruptcy Code, the Trustee seeks to abandon the unadministered assets of the Debtor because the value of any such assets is far outweighed by the costs necessary to recover [them]" (notice of proposed abandonment, ¶ 3). Seitz made clear that he is specifically abandoning any unadministered assets to plaintiff, stating that he "seeks to abandon the assets in favor of the Debtor" (id., ¶ 3).

         More specifically, the trustee proposed to abandon to plaintiff "any such malpractice claims against... David Greuner" (id., ¶ 6). In conclusion, Seitz stated that he had "investigated the claims and has determined that any recovery of the potential claims is far from certain" and that it was in the best interest of the estate to abandon the claims, as "[t]he significant cost of pursuing the uncertain claims... is burdensome to the Estate" (id., ¶¶ 9-10). Upon notice, none of plaintiff's creditors objected to the proposed abandonment.

         In arguing that plaintiff has no standing, defendant cites to In re Arana (456 BR 161 [EDNY 2011]), which held that "[w]hen an action is not disclosed by the debtor, it remains property of the bankruptcy estate even after the case is closed - indeed, unless it is administered or abandoned by the trustee, the action remains property of the estate forever" (id. at 170 [internal quotion ...

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