In re the Brooklyn Hospital Center

513 B.R. 810, 2014 Bankr. LEXIS 3406, 2014 WL 3936489
CourtUnited States Bankruptcy Court, E.D. New York
DecidedAugust 8, 2014
DocketCase No. 05-26990(CEC) and Case No. 05-26992(CEC) (Jointly Administered)
StatusPublished
Cited by2 cases

This text of 513 B.R. 810 (In re the Brooklyn Hospital Center) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Brooklyn Hospital Center, 513 B.R. 810, 2014 Bankr. LEXIS 3406, 2014 WL 3936489 (N.Y. 2014).

Opinion

Chapter 11

DECISION

CARLA CRAIG, Chief United States Bankruptcy Judge

This matter comes before the Court on the motion of medical malpractice plaintiffs, E.S., an infant, by his mother and natural guardian, Kim Frazier, and Kim Frazier, individually (the “Movants” or “Creditors”), seeking, pursuant to Rule 4007(b) and § 350(b), to reopen the case of The BrooMyn Hospital Center and Caledo-nian Health Center, Inc. (the “Debtors”) so that the Creditors may obtain a determination of the dischargeability their claim.1 Because the Creditors received [814]*814notice of the bar date, pursuant to Rule 2002(a)(7), the Creditors’ claim was discharged pursuant to § 1141(d) upon confirmation of the Plan of Reorganization in this case (Order Confirming Second Am. Joint Ch. 11 Plan of Reorganization, Case No. 05-26990-CEC, ECF No. 1050) and the motion to reopen is denied.

JURISDICTION

This Court has jurisdiction of this core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A) and (I), 28 U.S.C. § 1334, and the Eastern District of New York standing order of reference dated August 28, 1986, as amended by order dated December 5, 2012. This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Rule 7052.

BACKGROUND

The following facts are undisputed, except as otherwise indicated.

On August 10, 2001, Movants commenced an action against The Brooklyn Hospital Center (“TBHC”) in Supreme Court, Kings County, Index No. 29473/2001 (the “State Court Action”). (Mot. to Reopen Ch. 11 Case, Case No. 05-26990-CEC, ECF No. 1387 at 11.) The State Court Action asserted a claim for medical malpractice allegedly occurring at TBHC in December, 2000. (Mot. to Reopen Ch. 11 Case Ex. A, Case No. 05-26990-CEC, ECF No. 1387-1.) Movants were represented at that time by the law firm of Sanocki, Newman, & Turret, LLP (the “Sanocki Firm”). Id. Defense counsel for TBHC at the time was Bartlett, Mc-Donough, Bastone & Monaghan, LLP (the “Bartlett Firm”). (Obj. to Mot. to Reopen, Case No. 05-26990-CEC, ECF No. 1390 at ¶ 4.) The Bartlett Firm served a Verified Answer on November 9, 2001, denying the material allegations in the complaint. Id. On January 7, 2002, the Sanocki Firm filed a Request for Judicial Intervention on behalf of the Movants; however, no preliminary conference or discovery ever occurred in the State Court Action. Id.

On June 26, 2003, during the pendency of the State Court Action, TBHC commenced a separate action in state court against its insurance carrier, CCC Insurance Company, Ltd. (“CCC”), seeking a declaration that the claims asserted by, inter alia, the Movants were covered by TBHC’s insurance policy (the “Coverage Action”). (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj., Case No. 05-26990-CEC, ECF No. 1399 at ¶ 2.) TBHC was represented by Garbarini & Scher, P.C. (“Garbarini”) in the Coverage Action. Id. at ¶ 1. By order of Judge Bernard J. Fried on July 8, 2004, the State Court Action was stayed pending the resolution of the Coverage Action (the “Stay Order”). (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj. Ex. A, Case No. 05-26990-CEC, ECF No. 1399-1.)

On August 20, 2004, TBHC, represented by Garbarini, commenced a second action against CCC seeking a declaratory judgment (the “Declaratory Judgment Action”) that CCC’s rescission of coverage for claims arising between July 1, 2000 and May 17, 2003 was in contravention of TBHC’s insurance policy. (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj., Case No. 05-26990-CEC, ECF No. 1399 at ¶ 6.) In the Declaratory Judgment Action, Garbarini joined all plaintiffs in actions arising from claims during that period (the “Covered Actions”) as defendants and interested parties, including the Movants. Id. Shortly thereafter, Garbarini served the Movants with the Summons and Complaint in the Declaratory Judgment Action by first class mail addressed to the Sa-[815]*815nocki Firm. Id. at ¶¶ 7-8. The Sanocki Firm replied to Garbarini on August 25, 2004 (the “Sanocki Letter”) stating that the Movants were no longer clients of the firm, and, therefore, the Sanocki Firm could not accept service of process. (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj. Ex. B, Case No. 05-26990-CEC, ECF No. 1399-2) In the Sanocki Letter, the Sanocki Firm stated that Movants had retained Mr. Barango-Tariah as counsel and provided Garbarini with Mr. Barango-Tari-ah’s mailing address. Id.

Upon receiving the Sanocki Letter, Gar-barini sent a letter to Mr. Barango-Tariah, dated August 31, 2004, requesting that he accept service on behalf of the Movants prior to September 10, 2014, to which there was no response. (Obj. to Mot. to Reopen Ex. 2, Case No. 05-26990-CEC, ECF. No. 1390-2; Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj. Ex. B, Case No. 05-26990-CEC, ECF No. 1399 at ¶¶ 11-12.)

On September 8, 2004, CCC removed the Declaratory Judgment Action to the United States District Court for the Southern District of New York, and on September 28, 2004, TBHC moved to remand the Declaratory Judgment Action to state court. (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj., Case No. 05-26990-CEC, ECF No. 1399 at ¶¶ 15, 17.) On February 22, 2005, Judge Thomas P. Griesa denied TBHC’s motion to remand and dismissed all the plaintiffs from the Covered Actions that TBHC had joined in the Declaratory Judgment Action, including, inter alia, the Movants, from the Declaratory Judgment Action. (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj. Ex. D, Case No. 05-26990-CEC, ECF No. 1399-4.) On February 24, 2005, following the dismissal of all claims against the Movants in the Declaratory Judgment Action, Garbarini received a notice of change of address form from Mr. Barango-Tariah bearing the caption of the Declaratory Judgment Action. (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj. Ex. E, Case No. 05-26990-CEC, ECF No. 1399-5.) The letter did not state or otherwise indicate that M r. Barango-Tariah represented the Movants. Id.

Following the dismissal of the claims asserted against them in the Declaratory Judgment Action, multiple plaintiffs from the Covered Actions moved to vacate the Stay Order issued in the Coverage Action, and on May 9, 2005, Justice Fried vacated the stay (the “Order to Vacate”). (Decl. of Y. Bar-Kokhba in Supp. of TBHC’s Obj., Case No. 05-26990-CEC, ECF No. 1399 at ¶¶ 20-21; Obj. to Mot. to Reopen Ex. 3, Case No. 05-26990-CEC, ECF. No. 1390-3.)

On June 3, 2005, Mr. Barango-Tariah filed a Consent to Change Attorney affidavit in the State Court Action (the “Change of Attorney Form”), stating that Mr. Bar-ango-Tariah had replaced the Sanocki Firm as the attorney of record for the Movants in the State Court Action. (Mot. to Reopen Ch. 11 Case Ex. D, Case No. 05-26990-CEC, ECF No. 1387-1.) However, neither Mr. Barango-Tariah, the Sa-nocki Firm, nor the Movants served the Change of Attorney Form on the Bartlett Firm or otherwise provided TBHC or the Bartlett Firm with notice of the change. (Mot. to Reopen Ch. 11 Case, Case No. 05-26990-CEC, ECF No. 1387 at ¶ 11; Obj. to Mot. to Reopen Ex. 4, Case No. 05-26990-CEC, ECF No. 1390-4.) The affidavit of service accompanying the Change of Attorney Form, dated May 5, 2005, indicates that the Change of Attorney Form was served by mail on Bonina & Bonina, P.C.

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Cite This Page — Counsel Stack

Bluebook (online)
513 B.R. 810, 2014 Bankr. LEXIS 3406, 2014 WL 3936489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-brooklyn-hospital-center-nyeb-2014.