Plaintiff's Failure To Report Medical Malpractice Case as Bankruptcy Asset Results in Dismissal in The Bronx
In 2018 Kelsey O’Brien successfully obtained an order of dismissal on behalf of our hospital defendant in a matter venued in Supreme Court, Bronx County. In this matter the plaintiff filed for Chapter 13 Bankruptcy protection prior to the institution of this medical malpractice action; he then failed to file an Amended Statement of Financial Affairs with his bankruptcy petition to include potential settlement or verdict in the medical malpractice lawsuit as an asset or potential asset. After joinder of issue, the Court discharged the bankruptcy and filed a final report and account. The defense argued the complaint warranted dismissal as the plaintiff lacked capacity to commence suit as he failed to disclose the schedule of assets filed with the bankruptcy court. Plaintiff argued the only property considered during bankruptcy is that held at the time of filing; they admitted to a category of property which must be declared within 180 days of filing, but argued potential malpractice assets were not included in that exception. The defendants successfully rebutted an amendment to the U.S Code, overlooked by plaintiff, broadened the prior exception and included all property acquired after filing and prior to bankruptcy closure, thus including this malpractice action. Justice Lubell agreed, and the medical malpractice claim was dismissed.