Ochs v. Vaul Trust

• Decision Date: 03 April 2007
• Docket Number: 2006-06054.
• Citation: 2007 NY Slip Op 02913,39 A.D.3d 514,835 N.Y.S.2d 591
• Parties: MARTIN P. OCHS, Respondent, v. VAUL TRUST, Defendant, and FRANK MANNINO et al., Appellants.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 514

835 N.Y.S.2d 591

2007 NY Slip Op 02913

MARTIN P. OCHS, Respondent, v. VAUL TRUST, Defendant, and FRANK MANNINO et al., Appellants.

2006-06054.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 3, 2007.

In an action to recover damages for personal injuries, the defendants Frank Mannino and Philip M. Licitra appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated May 2, 2006, as

denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that Dinusha P. Ratnayake did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) and denied their cross motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue and to cap the amount of the plaintiff's damages at $7,500.

Ordered that the order is affirmed insofar as appealed from, with costs.

By submitting the affirmed reports of their orthopedic surgeon and radiologist, the defendants Frank Mannino and Philip M. Licitra (hereinafter the defendants) established, prima facie, that the injuries sustained by Dinusha P. Ratnayake were not serious within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). However, the affidavit prepared by Ratnayake's treating chiropractor raised a triable issue of fact as to whether he sustained a "significant limitation of use of a body function or system" as a result of the accident (see Insurance Law 5102 [d]; Kraemer v Henning, 237 AD2d 492). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

The Supreme Court also properly denied the defendants' separate cross motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue and to cap the amount of the plaintiff's damages at $7,500. Unlike Santori v Met Life (11 AD3d 597 [2004]), and Whelan v Longo (23 AD3d 459 [2005], affd 7 NY3d 821 [2006]), relied upon by the defendants, this personal injury action was commenced before the filing of Ratnayake's bankruptcy petition, and thus, is considered property of the debtor under the US Bankruptcy Code (see 11 USC § 541 [a] [1]; Martinez v Desai, 273 AD2d 447, 448 [2000]). Where a trustee is appointed, as here, the personal injury claim then vests in the bankruptcy trustee (see Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 195 [1987]; Mehlenbacher v Swartout, 289 AD2d 651, 652 [2001]; DeLarco v DeWitt, 136 AD2d...