In re Greene

• Decision Date: 10 December 2008
• Docket Number: Bankruptcy No. 08-10472 (ALG).,Adversary No. 08-01148 (ALG).
• Citation: 397 B.R. 688
• Parties: In re Aaron GREENE, Debtor. Antonio Hernandez, Plaintiff, v. Aaron Greene, Defendant.
• Court: U.S. Bankruptcy Court — Southern District of New York

Page 688

397 B.R. 688

In re Aaron GREENE, Debtor Antonio Hernandez, Plaintiff, v. Aaron Greene, Defendant.

Bankruptcy No. 08-10472 (ALG).

Adversary No. 08-01148 (ALG).

United States Bankruptcy Court, S.D. New York.

December 10, 2008.

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Rothman, Schneider, Solowway & Stern LLP by Robert A. Soloway, Esq., New York, NY, for Antonio Hernandez.

Robert S. Lewis, Esq., Nyack, NY, for Aaron Greene.

POST-TRIAL MEMORANDUM

ALLAN L. GROPPER, Bankruptcy Judge.

This adversary proceeding arises from a fight during which Aaron Greene ("Greene") stabbed Antonio Hernandez ("Hernandez"). Greene pled guilty to the crime of assault in the second degree and was sentenced to a year in prison. Hernandez sued for damages in State court, Greene followed with the above-captioned Chapter 7 bankruptcy petition, and Hernandez countered with this adversary proceeding seeking to declare the debt non-dischargeable on the ground that Greene acted "willfully and maliciously." 11 U.S.C. § 523(a)(6). Greene argues that his actions were justified and that he acted in self-defense. Upon the findings of fact and conclusions of law set forth below, the Court concludes that Hernandez is entitled to a judgment that his damages are not discharged by virtue of the bankruptcy filing.¹

BACKGROUND

The encounter took place on March 18, 2005, at around 5:00 a.m. Hours earlier, Greene and his girlfriend had been patrons of a bar where Hernandez worked as a security guard. Hernandez and Greene got into a dispute regarding a slice of pizza, and Hernandez asked Greene to leave the premises. Once outside, near the door of the bar, Greene had a physical altercation with other patrons of the bar. Although Greene does not contend that Hernandez physically abused or threatened him in connection with that altercation, Greene was convinced that Hernandez had provoked the incident, blamed Hernandez for his misfortune and went home outraged. Greene also asserts that when he got home he realized that part of his cell phone was missing and that he went back to the bar to look for it. In any event, it is not contested that when Greene returned to the bar he carried with him an eleven-inch butcher knife hidden in his coat pocket.

When Greene arrived at the bar he found it locked, but there were employees of the bar or others who remained inside, and he waited across the street. Hernandez appeared at around 4:20 a.m., accompanied by a fellow employee. Hernandez and his colleague began to walk together toward their respective apartments and soon came upon Greene. Hernandez noticed that Greene had his hand in his coat pocket and seemed to have something concealed there, but he did not challenge Greene at that time. Greene told Hernandez in any event, that his cell phone had been lost as a result of the encounter outside the bar and asked Hernandez whether he had it. Hernandez stated he knew nothing about the cell phone and continued to walk toward his apartment, still accompanied by his colleague. Greene, who says he was unconvinced by what Hernandez said, followed them.

After a few blocks, Hernandez challenged Greene and demanded that he stop following them. Greene claims that he again inquired about his cell phone, and again Hernandez told him he did not have it. The pursuit continued. Minutes later, Hernandez confronted Greene once more and warned him that the stalking had to cease. Greene, undeterred, continued to follow. Shortly thereafter, Hernandez and his friend hid in an alley in an attempt to lose Greene; they did not want him to follow them to their apartments and learn where they lived. Greene, aware of their hiding place, watched them from an adjacent, dark, vacant lot.

Hernandez and his friend then resumed their walk home after concluding that they had lost Greene; however, when passing by the adjacent lot where Greene waited, Hernandez heard a sound. As it was dark, Hernandez pointed in the direction of the sound with a pocket flashlight he was carrying. He saw Greene and entered the vacant lot to confront him. Greene walked toward Hernandez. When they were three feet away from each other, Hernandez concluded that Greene was trying to pull something out his coat pocket and struck Greene once on the side of the face.² Greene fell on his knees and Hernandez jumped or fell on top of him. At the same time, Hernandez's friend shouted that Greene had a knife; however, Greene had already stabbed Hernandez once in the right side of the abdomen. Green then fled the scene and managed to escape, although Hernandez chased him for several blocks.

Hernandez spent two days in the hospital as a result of the incident. Greene was apprehended by the police, charged for the stabbing and, after pleading guilty to assault in the second degree under N.Y. Penal Law § 120.05[02], was sentenced to and spent a year in prison.³ Hernandez sued Greene for damages in State court, but on the eve of a jury trial, Greene filed the above-captioned Chapter 7 bankruptcy petition and the suit was stayed. Hernandez subsequently commenced this adversary proceeding seeking a determination that any damages would be non-dischargeable under § 523(a)(6) of the Bankruptcy Code on the ground that Greene had acted willfully and maliciously. Hernandez contends that Greene's guilty plea and conviction are determinative on the issue of willfulness and malice. Nevertheless, while Hernandez did not waive the point, both parties agreed that the issues would be tried before the Court, and a one-day trial was held on October 27, 2008. At trial, Greene contended in substance that his actions were justified and that he acted in self-defense.

For the reasons and upon the findings and conclusions set forth herein, the Court concludes that Hernandez's claim is non-dischargeable under § 523(a)(6).

DISCUSSION

I. Section 523(a)(6): the Standard

A bankruptcy discharge covers all debts arising before the petition is filed except as provided in § 523 of the Bankruptcy Code. 11 U.S.C. § 727(b). Section 523(a)(6) exempts from discharge any debt "for willful and malicious injury by the debtor to another entity" (i.e., person). 11 U.S.C. § 523(a)(6); see also 11 U.S.C. § 101(15). "The terms `willful' and `malicious' are separate elements, and both elements must be satisfied." Rupert v. Krautheimer (In re Krautheimer), 241 B.R. 330, 341 (Bankr.S.D.N.Y.1999); see also 4 Collier on Bankruptcy ¶ 523.12[2] (15th ed.). A willful injury entails a deliberate or intentional act directed at causing the ensuing injury. Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). On the other hand, a malicious injury is one that is "`wrongful and without just cause or excuse, even in the absence of personal hatred, spite, or ill-will.'" Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.2006), quoting In re Stelluti, 94 F.3d 84, 87 (2d Cir.1996). "Malice may be implied `by the acts and conduct of the debtor in the context of the surrounding circumstances.'" Ball, 451 F.3d at 69, quoting In re Stelluti, 94 F.3d at 88. As one Court has stated, the malicious element of § 523(a)(6) "adds the absence of just cause or excuse." In re Garner, 56 F.3d 677, 681 (5th Cir.1995), abrogated on other grounds by In re Caton, 157 F.3d 1026 (5th Cir.1998).

The Supreme Court has held that the standard of proof in a non-dischargeability action is preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 287-88, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Nevertheless, the law favors discharge and the ability of a debtor to obtain a fresh start. See Cazenovia College v. Renshaw (In re Renshaw), 222 F.3d 82, 86 (2d Cir.2000), citing Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). It is thus well-accepted that all exceptions to discharge are construed narrowly. See Andy Warhol Found. for Visual Arts, Inc. v. Hayes (In re Hayes), 183 F.3d 162, 167 (2d Cir.1999).

As noted above, Hernandez relies on Greene's guilty plea as having conclusively established the malicious and willful elements of § 523(a)(6). Greene contends that a defendant in a criminal case has many reasons to accept a plea bargain and that his plea should not preclude him from presenting his defenses in this Court. Therefore, the Court must first determine whether the prior criminal proceedings and the guilty plea are determinative as to the issues at hand.

II. Section 523(a)(6) and Issue Preclusion

Under the doctrine of issue preclusion or collateral estoppel, issues litigated and decided in a prior proceeding involving a party to a second proceeding and incorporated in a judgment preclude relitigation of the same issues in the second proceeding. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). The following conditions must be met before preclusive or collateral estoppel effect can be given:

(i) the issues in both proceedings must be identical; (ii) the issue in the prior proceeding must have been litigated and decided; (iii) there must have been a full and fair opportunity for the party against whom preclusion is sought in the second proceeding to litigate the issue in the prior proceeding; and (iv) the issue previously litigated must have been necessary to support a valid and final judgment on the merits.

Gelb v. Royal Globe Insurance Co., 798 F.2d 38, 44 (2d Cir.1986). Bankruptcy

courts frequently apply the doctrine of issue preclusion in dischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Indeed, there are numerous cases holding that a guilty plea in a criminal prosecution satisfies the standards in § 523(a)(6). See Deere & Co. v. Dickerson (In re Dickerson), 372 B.R. 827 (Bankr.N.D.Miss.2007); Gray v. Gray (In re Gray), 322 B.R. 682 (Bankr.N.D.Ala.2005); Erickson v. Roehrich (In re Roehrich), 169 B.R. 941 (Bankr.D.N.D.1994); Blackman v. Gaebler (In re Gaebler), 88 B.R. 62 (E.D....