In re Shapiro

• Decision Date: 31 March 1995
• Docket Number: Bankruptcy No. 194-14431-352. Adv. No. 194-1312.
• Citation: 180 BR 37
• Parties: In re Avram SHAPIRO, Debtor. Mary STEED, Plaintiff, v. Avram SHAPIRO, Defendant.
• Court: U.S. Bankruptcy Court — Eastern District of New York

180 B.R. 37 (1995)

In re Avram SHAPIRO, Debtor.

Mary STEED, Plaintiff, v. Avram SHAPIRO, Defendant.

Bankruptcy No. 194-14431-352. Adv. No. 194-1312.

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

March 31, 1995.

Macco, Hackeling & Stern by Michael J. Macco, Huntington, NY, for debtor-defendant.

Tantleff & Cohen, P.C. by Ivan Tantleff, Brooklyn, NY, for plaintiff.

DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT ON § 523 OBJECTIONS TO DISCHARGEABILITY OF DEBT

MARVIN A. HOLLAND, Bankruptcy Judge:

Before this Court are cross-motions for summary judgment in this adversary proceeding which seeks a declaration that the Plaintiff's claim is non-dischargeable under 11 U.S.C. § 523(a)(6). The Plaintiff's motion for summary judgment is denied; The Debtor-Defendant's motion for summary judgment is granted.

STATEMENT OF FACTS

On May 31, 1994, the Debtor-Defendant filed a voluntary petition under chapter 7 of the Bankruptcy Code. On or about September 19, 1994, Plaintiff filed her complaint pursuant to 11 U.S.C. § 523(a)(6) seeking to except from discharge a claim against the Debtor-Defendant. The Debtor-Defendant served and filed an answer dated October 13, 1994.

The Debtor-Defendant is a Doctor of Podiatry. In 1988, the Plaintiff was examined by the Debtor-Defendant who recommended and subsequently performed surgery upon her feet. The Debtor-Defendant then made a "house call" to Plaintiff's home ostensibly to remove sutures. The Plaintiff alleges that during this "house call" the Debtor had "unpermitted sexual contact with Plaintiff" (hereinafter, the "1988 Incident") which is the gravamen of this adversary proceeding.

The 1988 Incident resulted in the Debtor-Defendant's conviction for sexual misconduct and for sexual abuse in the third degree, both of which are misdemeanors under the New York Penal Code. However, by order of the Appellate Term, Second and Eleventh Judicial Districts (hereinafter, the "Appellate Term"), entered May 10, 1991, the Debtor's judgment of conviction was unanimously reversed.¹

By "Certificate Denying Leave" dated September 19, 1991, the New York State Court of Appeals (hereinafter, the "Court of Appeals") denied leave to further appeal the order of the Appellate Term.

On or about October 21, 1989, the Plaintiff commenced a medical malpractice action against the Debtor-Defendant in the Supreme Court of the State of New York, Kings County (hereinafter, the "State Court") based upon the 1988 Incident. The Debtor-Defendant moved to dismiss on the grounds that, inter alia, it was barred by the one-year statute of limitations for intentional torts.

By order dated November 21, 1991 (hereinafter, the "Dismissal Order"), the State Court granted the Debtor's motion to dismiss the malpractice action on the basis that it was one of assault and battery and therefore time-barred pursuant to New York Civil Procedure Laws and Rules (hereinafter "CPLR") § 215. On appeal, the State Court's decision was unanimously affirmed by the Appellate Division Fourth Department. The Plaintiff's petition to the Court of Appeals for further permission to appeal was denied.

DISCUSSION

Fed.R.Civ.P. 56(c), made applicable to bankruptcy proceedings by Fed.R.Bankr.P. 7056, governs motions for summary judgment in the federal courts. The purpose of the motion is to dispose of issues which can be decided upon established, admitted or ascertainable facts without a trial. The court must deny summary judgment where there is a genuine issue as to any material fact, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and grant it where there is no such issue and the movant is entitled to judgment as a matter of law, Hamilton v. Smith, 773 F.2d 461, 466 (2d Cir.1985).

The complaint seeks an order pursuant to 11 U.S.C. § 523(a)(6) excepting from the Debtor-Defendant's discharge the Plaintiff's "claim" arising from the 1988 Incident. Section 523 of the Code provides in pertinent part:

(a) A discharge . . . does not discharge an individual debtor from any debt —

(6) for willful and malicious injury by the debtor to another entity . . . emphasis added.

Thus before a court even addresses the issue of whether grounds exist for excepting a certain debt from a debtor's discharge, it must be established that a "debt" existed prior to the debtor's bankruptcy. The term "debt" is defined in 11 U.S.C. § 101(12) as "liability on a claim". "Claim" is defined in 11 U.S.C. § 101(5) in pertinent part as a "right to payment . . . ".

We need not consider whether the Debtor-Defendant committed the acts of which he was charged and of which the Plaintiff now complains. As set forth above, the malpractice action was dismissed because the State Court found that the cause of action alleged by the Plaintiff was one of assault and battery and therefore time-barred pursuant to CPLR § 215² and the dismissal was affirmed on appeal. Since the allegations in the malpractice action concerning sexual misconduct form the basis of the Plaintiff's complaint, as of the commencement of this case the Plaintiff no longer had a "right to payment" against the Debtor-Defendant for such sexual misconduct which was enforceable in state court. No longer having any "right to payment", the Plaintiff does not have a "claim" enforceable against the Debtor-Defendant, and thus, there exists no "debt" to except from the Debtor-Defendant's discharge.

The Plaintiff maintains, however, that notwithstanding the Dismissal Order, her "claim" was effectively revived by CPLR § 213-b (enacted in 1992) which provides:

Notwithstanding any other limitation set forth in this article or in article

five of the estates, powers and trusts law, an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime emphasis added.

The Plaintiff asserts that because she is a "crime victim" and the Debtor-Defendant has been "convicted of a crime", pursuant to CPLR § 213-b, she could now commence a timely action to recover damages from the Debtor-Defendant as a result of the 1988 Incident.

The Debtor-Defendant counters that the Plaintiff does not have an action under CPLR § 213-b because: (1) his conviction was overturned on appeal, (2) even if his conviction had not been overturned, the offenses for which he was convicted of do not constitute "crimes" within the meaning of CPLR § 213-b because they were misdemeanors, and (3) the dismissal of the malpractice action is res judicata and therefore bars the Plaintiff from re-litigating any claim for intentional tort resulting from the 1988 Incident.

We need not address the Debtor-Defendant's assertion that a misdemeanor does not constitute a "crime" under CPLR § 213-b, nor his argument based on res judicata³ because notwithstanding the wording of CPLR § 213-b, which appears to be applicable whenever a defendant has been "convicted of a crime", it does not apply where a judgment of conviction is reversed and the information dismissed.

In People v. Palmer, 109 N.Y. 413, 17 N.E. 213 (1888), a case decided by the New York Court of Appeals in 1888, the defendant was convicted of an assault in the third degree which was a lower degree of the crime than that charged in the indictment. On appeal, the General Term reversed the judgment of conviction on questions of law only, and remanded for a new trial. The defendant appealed from so much of the General Term decision as ordered a new trial. On appeal to the New York Court of Appeals, the defendant/appellant contended that because he had been convicted of assault in the third degree, he had been acquitted of assault in any higher degrees, and therefore he could not be re-tried for anything but the lesser crime of which he had been convicted. The New York Court of Appeals rejected the defendant/appellant's argument and held that he "must go back and stand his trial under the indictment as though he had never been tried." Palmer, 109 N.Y. at 420, 17 N.E. 213. The Court of Appeals further held that the effect of a reversal of a judgment of conviction is that the "judgment, as well as the record of the former trial, are annulled and expunged by the judgment of the appellate court, and they are as though they never had been . . .". Id.

New York has been consistent in following this holding. In People v. Bach, 61 Misc.2d 630, 631, 306 N.Y.S.2d 365 (1970), a case where the defendant's conviction of murder in the first degree was reversed on appeal, the court held:

When this defendant\'s conviction of the crime of murder in the first degree was reversed, her judgment of conviction and the record of her former trial became annulled as though they had never been (People v. Palmer, 109 N.Y. 413, 17 N.E. 213), and as a result of such legal nullity, this defendant has now been restored to and is deemed to be in precisely the same position that she was in before her trial took place citations omitted, and she is not considered as having been convicted emphasis added.⁴

Similarly, in People v. Ercole, 4 N.Y.2d 617, 620, 176 N.Y.S.2d 649, 152 N.E.2d 77 (1958), the New York Court of Appeals held:

It is well-settled law in this State that when a defendant procures a reversal of his conviction and sentence for legal error at trial, he may not plead the former proceedings in bar to a second trial for the same offense. Upon reversal, the defendant is deemed to be in precisely the same position as though there had been no trial citations omitted . . . So thoroughly does a reversal operate to vitiate the former proceedings that the defendant may be tried upon a superseding indictment which contains a count not included in the first indictment . . . emphasis added.

Both Ercole and Palmer were cited...