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Nicke v. Schwartzapfel Partners, P.C.

Supreme Court of New York, Second Department

March 29, 2017

Theresa Nicke, et al., appellants,
v.
Schwartzapfel Partners, P.C., also known as Schwartzapfel Lawyers, P.C., et al., respondents. Index No. 9897/13

          Greenberg & Wilner, LLP, New York, NY (Harvey L. Greenberg of counsel), for appellants.

          L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Kimberly Johnson Glenn of counsel), for respondents Schwartzapfel Partners, P.C., also known as Schwartzapfel Lawyers, P.C., and Steven Schwartzapfel.

          Lewis Johs Avallone Aviles, LLP, Islandia, NY (James F. Murphy of counsel), for respondent Michael Shapiro.

          MARK C. DILLON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, BETSY BARROS, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for legal malpractice and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), entered March 27, 2014, as granted those branches of the separate motions of the defendants Schwartzapfel Partners, P.C., also known as Schwartzapfel Lawyers, P.C., and Steven Schwartzapfel, and the defendant Michael Shapiro, which were pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them for lack of capacity to sue.

         ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the plaintiffs payable by the respondents appearing separately and filing separate briefs, and those branches of the separate motions of the defendants Schwartzapfel Partners, P.C., also known as Schwartzapfel Lawyers, P.C., and Steven Schwartzapfel, and the defendant Michael Shapiro, which were pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them are denied.

         In May 2004, the plaintiff Theresa Nicke (hereinafter the injured plaintiff) allegedly was injured in a motor vehicle accident. In August 2004, the injured plaintiff and her husband, the plaintiff Fred C. Nicke, commenced a Chapter 13 bankruptcy proceeding (1978 Bankruptcy Code [11 USC] ch 13). The plaintiffs did not include the potential personal injury claim as an asset in their schedule of assets. In May 2005, the defendant Schwartzapfel Partners, P.C., also known as Schwartzapfel Lawyers, P.C. (hereinafter the law firm), commenced a personal injury action (hereinafter the 2005 action) on behalf of the injured plaintiff, seeking to recover damages for the injuries she sustained in the May 2004 motor vehicle accident.

         The defendants in the 2005 action moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint on the ground that the injured plaintiff lacked the legal capacity to sue, since she had not included the claim as an asset in the bankruptcy petition. In an order dated February 8, 2008, the Supreme Court, Suffolk County, granted the motion to dismiss, concluding that the injured plaintiff lacked the capacity to sue. The injured plaintiff did not appeal from that order.

         A new action was commenced by the law firm on May 13, 2008, in the name of the bankruptcy trustee. Thereafter, in January 2010, the plaintiffs were discharged from bankruptcy. The personal injury action continued in the name of the trustee, and in May 2011, a trial was held in that action. The defendant Michael Shapiro, a physician, testified on behalf of the trustee. The action resulted in a $300, 000 verdict in favor of the trustee, which was then settled for $500, 000 pursuant to a "high-low" agreement that had been entered into by the parties. In July 2011, the bankruptcy proceeding was closed and a final decree issued.

         In September 2013, the plaintiffs commenced this action in the Supreme Court, Nassau County, against Steven Schwartzapfel and the law firm (hereinafter together the Schwartzapfel defendants), as well as Shapiro, seeking to recover damages for, inter alia, legal malpractice and fraud based on their actions with regard to the 2011 trial. According to the plaintiffs, the Schwartzapfel defendants and Shapiro altered a report to make the injured plaintiff's injuries seem worse than they actually were, and at the 2011 trial, Shapiro was cross-examined about the altered report. The plaintiffs alleged that the jury reduced the verdict based on the lack of Shapiro's credibility. The Schwartzapfel defendants filed a pre-answer motion to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1), (3), and (5), and based upon the doctrine of judicial estoppel. Shapiro separately moved to dismiss the complaint insofar as asserted against him on the same grounds. In an order entered March 27, 2014, the Supreme Court granted those branches of the defendants' separate motions which were pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them on the ground that the plaintiffs lacked capacity to commence the action, and denied the remaining branches of the motions as academic. The plaintiffs appeal, and we reverse insofar as appealed from.

         The Supreme Court erred in granting those branches of the defendants' separate motions which were pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them. Capacity to sue concerns a litigant's power to appear and bring its grievance before the court (see Community Bd. 7 of Borough of Manhattan v Schaffer, 84 N.Y.2d 148, 155; Caprer v Nussbaum, 36 A.D.3d 176, 181). Contrary to the court's determination, the plaintiffs, as litigants in a Chapter 13 bankruptcy proceeding, possessed the requisite capacity to maintain this action (see Giovinco v Goldman, 276 A.D.2d 469, 469; Olick v Parker & Parsley Petroleum Co., 145 F.3d 513, 515).

         Further, the doctrine of collateral estoppel does not bar a finding that the plaintiffs had capacity to commence this action. The doctrine of collateral estoppel, or issue preclusion, "applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the [party against whom the issue was decided] had a full and fair opportunity to litigate the issue in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349; see Spencer v Tower Ins. Group Corp., 130 A.D.3d 709, 710). The issue decided in the 2005 action was whether the plaintiff Theresa Nicke had capacity to maintain that action where she failed to include the action as an asset in her bankruptcy petition. Such a determination does not preclude her from maintaining other causes of action arising out of different facts and at different times, such as here, where the plaintiffs claim damages based on legal malpractice and fraud arising from the defendants' alleged actions relating to the 2011 trial. The defendants' contention that the plaintiffs are barred under the doctrine of judicial estoppel is likewise without merit (see Davis v Citibank, N.A., 116 A.D.3d 819, 821; Kenney v National Fuel Gas Distrib. Corp., 8 A.D.3d 989, 989).

         Furthermore, to the extent so argued by the defendants, we find that the plaintiffs, as Chapter 13 debtors, had standing to maintain this action. We note that standing, of course, concerns the absence or presence of a sufficiently cognizable stake in the outcome of the litigation (see Silver v Pataki, 96 N.Y.2d 532; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 A.D.3d 239, 242).

         In contrast to Chapter 7 proceedings, the object of a Chapter 13 proceeding is the rehabilitation of the debtor under a plan that adjusts debts owed to creditors by the debtor's regular periodic payments derived principally from income. Thus, in a Chapter 13 proceeding, a debtor generally retains his property, if he so proposes, and seeks court confirmation of a plan to repay his debts over a three- to five-year period (see 11 USC §§ 1306[b]; 1322, 1327[b]). Payments under a Chapter 13 plan are usually made from a debtor's "future earnings or other future income" (11 USC § 1322[a][1]). "Accordingly, the Chapter 13 estate from which creditors may be paid includes both the debtor's property at the time of his bankruptcy petition, and any wages and property acquired after filing" (Harris v Viegelahn, ___US ___, ___, 135 S.Ct. 1829, 1835; see 11 USC § 1306[a]). Assets acquired after a Chapter 13 plan is confirmed by the court are not included as property of the estate, unless they are necessary to maintain the plan (see 11 USC §§ 1306[a]; 1326), or the trustee seeks a modification of the plan to remedy a substantial change in the debtor's income or expenses that was not anticipated at the time of the confirmation hearing (see 11 USC § 1329[a]; In re Solis, 172 BR 530, 532 [Bankr S.D. NY]). Unlike Chapter 7 proceedings, there is no separation of the estate property from the debtor under a Chapter 13 proceeding, except to the extent that the plan, as confirmed by order of the court, places control over an asset in the hands of the trustee (see Harris v Viegelahn, ___ U.S. at ___, 135 S.Ct. at 1835). This is the basis for the conclusion that, while Chapters 7 and 11 debtors lose capacity to maintain civil suits, Chapter 13 debtors do not (see Giovinco v Goldman,276 A.D.2d 469; Olick v Parker & Parsley Petroleum Co., 145 F.3d at 515-516). Thus, a Chapter 13 debtor keeps all, or at the very least some, of the income and property he or she acquires during the administration of the repayment plan. Accordingly, in this action, it was never the bankruptcy estate, or its creditors, that was damaged by a decrease in the amount awarded in the underlying personal injury action due to the alleged conduct of the defendants. Only the plaintiffs had an interest in the recovery of damages in the personal injury action (see ...


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