Barbarino v. Chalfin

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re 	: 	Chapter 11
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HOWARD J. CHALFIN, 	: 	Case No. 17-11588 (MEW)
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Debtor. 	:
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SCOTT BARBARINO, 	:
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Plaintiff, 	:
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v. 	: 	Adv. Pro. No. 17-01122 (MEW)
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HOWARD J. CHALFIN, 	:
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Defendant. 	:
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BENCH DECISION REGARDING DEFENDANT’S MOTION TO
DISMISS AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
A P P E A R A N C E S :
HOWARD CHALFIN, pro se
Debtor-defendant
2211 Broadway, Suite 12
New York, New York
LAW OFFICES OF GABRIEL DEL VIRGINIA
Counsel to Plaintiff
30 Wall Street, 12th Floor
New York, New York 10005
By: Gabriel Del Virginia, Esq.
MICHAEL E. WILES
UNITED STATES BANKRUPTCY JUDGE
Before the Court are two motions that arise out of an adversary proceeding in the chapter
7 case of the debtor, Howard Chalfin. The adversary proceeding has been commenced by Scott
Barbarino. Mr. Barbarino seeks a ruling that a debt owed to him by Mr. Chalfin is not
dischargeable. The debt in question is a judgment entered by the New York state court. The
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state court awarded damages to Mr. Barbarino after finding that Mr. Chalfin had struck him
during a dispute.
Mr. Barbarino claims that the debt is based on a willful and malicious injury to his person
and, therefore, is not dischargeable. See 11 U.S.C. § 523(a)(6). Mr. Chalfin disputes this
contention. He denies that he acted willfully or maliciously. He also points to a finding by the
state court to the effect that his assault on Mr. Barbarino was not premeditated, and argues that
this was a finding that he did not act willfully or maliciously.
Mr. Chalfin has moved to dismiss the action. In response, Mr. Barbarino has moved for
summary judgment. Mr. Barbarino contends that findings made by the state court are binding
and that they demonstrate that the conduct was willful and malicious.
Since both parties rely on the state court’s findings, it is appropriate to turn first to the
state court’s decision, which was issued on March 1, 2016.
The state court made certain factual findings which are binding upon me to the extent
they were based on actual litigation and were necessary to the state court’s decision. See Arizona
v. California, 530 U.S. 392, 414 (2000); Zimmerman v. Tower Ins. Co. of N.Y., 788 N.Y.S.2d
309, 210 (App. Div. 2004). I have no question – having heard him this morning – that Mr.
Chalfin disputes the accuracy of these findings. However, they are binding on me, and I must
accept them as true.
The state court found that Mr. Chalfin was the “aggressor” and that he was “not justified”
in giving Mr. Barbarino, as he put it, the old “one-two.” He found that Mr. Chalfin seemed like a
nice guy, but certainly was a bit hot-tempered. He found that “the overall weight of the
evidence” was that Mr. Chalfin was “angry that he was being asked to pay for his food and drink
tab” and that he “leaped up, knocked over the table and jumped over them at the same time,”
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pulling Mr. Barbarino by the tie. He noted that Mr. Chalfin “admitted to punching.” He
concluded that Mr. Chalfin was guilty under state law of the tort of assault.
The state court noted certain injuries that Mr. Barbarino had suffered to his eye, and
emotional distress that he had incurred, and held that Mr. Barbarino was entitled to $90,000 in
compensatory damages. As to the claim for punitive damages, the judge in the state court stated
that “I do not like physical violence” and that this was a case where “it shouldn’t have been
inflicted.” However, he also noted that “it was in the context of a dispute” and “it was not
premeditated.” Based on these factors, the judge awarded $5,000 in punitive damages. In the
conclusion to the opinion, the state court held that Mr. Chalfin “tortiously assaulted Mr.
Barbarino,” and awarded $90,000 in compensatory damages and $5,000 in punitive damages.
The issue before me, in this case, is whether these findings are conclusive as to the
dischargeability action. There is no question that the judgment represents a debt that Mr. Chalfin
owes to Mr. Barbarino. There is also no question that the debt is based on the assault that Mr.
Chalfin has been found to have committed against Mr. Barbarino. The question is whether the
debt is based on a willful and malicious infliction of an injury, so as to be excepted from
discharge under section 523(a)(6) of the Bankruptcy Code.
As to the motion to dismiss: I find that, clearly, the complaint states a cause of action. It
refers to the state court findings and alleges sufficiently that the actions that gave rise to the debt
involved a willful and malicious infliction of injury.
As to whether the state court’s findings show that the injury was inflicted willfully and
maliciously, I will start first with the requirement that the injury be inflicted willfully. There is
no question that the state court necessarily found that Mr. Chalfin’s conduct was deliberate and
intentional, and therefore that the conduct itself was willful. The state court found that Mr.
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Chalfin was guilty of assault. Under New York state law, assault is an intentional tort. See 6A
New York Jur. 2d, Assault – Civil Aspects, § 4. It cannot be committed accidentally. So, in
finding Mr. Chalfin guilty of assault, the state court necessarily had to find that he struck Mr.
Barbarino intentionally.
The fact that underlying conduct is intentional, however, does not end the inquiry. For
purposes of section 523(a)(6) it is not enough to show that the underlying conduct was willful.
Instead, section 523(a)(6) requires that an injury was willfully and deliberately inflicted. That is
what the Supreme Court held in the case that Mr. Chalfin cited, Kawaauhau v. Geiger, 523 U.S.
57, 61 (1998). For purposes of section 523(a)(6) there must be an intent to injure, not just an
intent to commit the act.
Under New York law, an assault and battery occurs when a person intentionally makes
unjustified physical contact with another person. There are some New York cases that at times
suggest otherwise, but it appears more widely to be accepted that in establishing a claim for
assault under New York law, it is not necessary to prove that the wrongdoer intended to cause
injury. See, e.g., Masters v. Becker, 22 A.D.2d 118, 120 (App. Div. 1964). If a person
intentionally makes offensive, unjustified bodily contact with another person even without an
intent to do harm, and if injury unintentionally results from that contact – such as a shove – the
person may be guilty of assault under New York law.
Accordingly, the mere characterization of Mr. Chalfin’s conduct as an assault for
purposes of New York law shows that he acted deliberately, but it does not necessarily show that
he intended to inflict injury. The problem, though, is that this is not a case where Mr. Chalfin
was found to have pushed Mr. Barbarino, or otherwise made contact that produced an
unexpected consequence. The state court found that Mr. Chalfin leaped across the table, pulled
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on Mr. Barbarino’s tie and punched him in the head, damaging his eye and leaving him with
some psychological stress.
In order to show a willful injury under section 523(a)(6), Mr. Barbarino must show either
that Mr. Chalfin deliberately intended to cause the injury or that, based on Mr. Chalfin’s conduct,
there was a subjective, substantial certainty that the injury would occur. Hough v. Margulies (In
re Margulies), 517 B.R. 441, 452 (S.D.N.Y. 2014). If the debtor knows that the consequences
are certain, or substantially certain, to result from his conduct, the debtor is treated as if he had,
in fact, desired to produce those consequences. Van Daele Bros., Inc. v. Thoms (In re Thoms),
505 Fed.Appx. 603, 605 (8th Cir.2013) (summary order).
Mr. Chalfin has not argued today that he somehow thought his punch would have no
effect, or that he intended to make a punch that would have no effect, or that he was surprised
that landing a punch would actually hurt somebody. To the contrary: he has described himself as
an experienced fighter who had to know, as a result, that a punch could and would inflict injury.
Maybe he thought he was at a disadvantage in dealing with Mr. Barbarino, but certainly he knew
that punching somebody was not going to be ineffective and without consequence. It would be
surprising for somebody to say that punching somebody in the head is something you would do
thinking it would have no effect.
I think what Mr. Chalfin wants to argue is that he felt threatened and that he was justified
in making the punch. But I am precluded from finding that, because the state court explicitly
found that Mr. Chalfin was not justified in punching Mr. Barbarino. So all I am left to look at is
whether the injury was willfully inflicted. In Mr. Chalfin’s own explanation he felt threatened
and felt he had to do something that would make Mr. Barbarino back off. Everything about his
own description of the events, not so much his motivations or what prompted them or the alleged
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justifications but his description of the events, shows that he did intend to inflict harm. He did
intend to make Mr. Barbarino back off and to do so by striking him. It is implicit in the fact that
you punch somebody in the head that you intend to cause them damage or intend to hurt them.
Now, whether Mr. Chalfin is right or wrong in arguing that he was justified in doing it, or
that he felt trapped, is out of my hands. I hope Mr. Chalfin understands that. The only issue for
me is whether there is any room to argue that when Mr. Chalfin punched Mr. Barbarino without
justification, as the state court found, that somehow he did not intend to hurt him. Based on Mr.
Chalfin’s own explanations, it does not seem that there is any legitimate room to argue that he
did not mean to hurt Mr. Barbarino.
As to maliciousness: the courts have struggled to define exactly what that ought to mean
as the term is used in section 523(a)(6) of the Bankruptcy Code. The prevailing Black’s Law
Dictionary definition is that an action is malicious if it is without legal justification. BLACK’ S
LAW DICTIONARY (10th ed. 2014). The courts have sometimes required something a little extra
when the deliberate action is not an intentional tort, but is instead a breach of contract or a breach
of a statutory obligation. In re Orly, No. 15-11650(JLG), 2016 WL 4376947, at *6 (Bankr.
S.D.N.Y. Aug. 10, 2016). But in this case we have an intentional tort. We also have something
extra in the underlying conduct, or else the state court judge could not have awarded punitive
damages. See 6A New York Jur. 2d, Assault – Civil Aspects, § 27 (noting that punitive damages
require “actual malice” on the part of the defendant or “such wantonness or recklessness as to
imply or permit the inference of malice”).
I think as a result that the state court did decide every issue that is relevant here except, in
theory, the question of whether the deliberately and maliciously inflicted punch was deliberately
and maliciously intended to cause injury. However, I just do not see any room for Mr. Chalfin to
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be able to argue that he did not intend to inflict injury, because the only arguments he has made
are based on alleged justifications or other challenges to the facts that the state court has already
decided against him.
Under the circumstances, given what the state court decided and given Mr. Chalfin’s
explanations and his argument today, summary judgment is appropriate. An order will be
entered to this effect.
Dated: New York, New York
July 9, 2018
/s/ Michael E. Wiles
HONORABLE MICHAEL E. WILES
UNITED STATES BANKRUPTCY JUDGE
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