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Supreme Court, Westchester County, June 25, 2004
APPEARANCES OF COUNSEL
Ahmuty, Demers & McManus, Albertson (Thomas G. Chojancki of counsel), for defendants. Babaja Guarneri, Yonkers, for plaintiff.
OPINION OF THE COURT
John R. LaCava, J.
Background and Facts
This is an action for personal injuries arising from an alleged slip and fall which took place on February 4, 2000 while plaintiff was attending a movie at the Movieland theatre, 2548 [*2]Central Park Avenue, Yonkers, New York. The action was commenced against the three corporate defendants on February 3, 2003. They are: United Artists Theatres, Inc., United Artists Theatre Circuit, Inc., and Movie Center, Inc., doing business as Movieland.
On the date plaintiff's claim arose, defendants had an insurance policy in effect with Kemper Insurance Company, which policy, it is not disputed, provides ample coverage for the underlying claim and under which, to date, Kemper has neither declined nor threatened to decline coverage for the accident. Plaintiff set up a claim with defendant's insurer shortly after plaintiff's accident occurred.
At or near the time of plaintiff's accident, various corporate entities, including defendant United Artists Theatre Circuit, Inc., were in the midst of bankruptcy proceedings and, ultimately, underwent a reorganization from bankruptcy in connection with which an injunction was granted barring any claims for incidents that happened prior to September 5, 2000. Consequently, an order was issued by the United States District Court for the District of Delaware, confirming the Second Amended Joint Plan of Re-Organization (the Joint Plan) for the subject corporate entities including United Artists Theatre Circuit, Inc., effective January 26, 2001.
Among other things, the Joint Plan provides:
"[F]rom and after the effective date, all persons and entities are permanently enjoined
from commencing or continuing in any manner, any suit, action, or other proceeding, on
account of or respecting any claim, demand, liability, obligation, debt, right, cause of
action, interests, remedy released or to be released pursuant to Article 10 of this plan."
Defendants now move to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that plaintiff has failed to comply with an order of the Bankruptcy Court with respect to the bankruptcy proceeding of "United Artists Theatres [as in original without any reference to 'Inc.', as appears in the caption, or 'Company' as appears in the underlying bankruptcy papers]."
Plaintiff opposes the motion as untimely, as defendants failed to move within the time provided for the filing of an answer (CPLR 3211 [e]). In addition, plaintiff argues that defendants have failed to preserve the affirmative defense upon which they base the instant motion by failing to precisely assert it in their answer pursuant to CPLR 3211 (e).
Conclusions of Law
Waived or not (see, CPLR 3211 [e]), the court finds that there is no merit to defendants' motions. [*3]
Although this motion is made on behalf of all defendants, neither defendant United Artists Theatres, Inc. nor defendant Movie Center, Inc., doing business as Movieland, has established that either was a party to or was covered under the Joint Plan. Therefore, the motion is denied as it pertains to defendants United Artists Theatres, Inc. and Movie Center, Inc., doing business as Movieland.
As to defendant United Artists Theatre Circuit, Inc., the court rules as follows: Pursuant to 11 USC

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