Vyshedsky v. Soliman (In re Soliman)

MEMORANDUM OPINION AND ORDER DENYING DISCHARGE OF PLAINTIFF’S STATE COURT JUDGMENT AGAINST THE DEBTOR

This adversary proceeding arises from an assault during which Sultan R. Solimán (“Solimán” or the “Debtor”) forcefully bit Lev Vyshedsky (“Vyshedsky” or the “Plaintiff,” together with the Debtor, the “Parties”) on the nose (the “Assault”). Photographs of Vyshedsky taken after he was hospitalized and treated show that Soliman’s bite caused serious injury to Vyshedsky’s nose, requiring numerous stitches to close the wounds. Solimán pled guilty in New York Criminal Court to the crime of assault in the third degree. He was sentenced to probation and fifteen (15) days community service.1 Vyshedsky sued Solimán for damages, initially in New York State Supreme Court and then transferred to the New York City Civil Court (the “Civil Court”). Following a lengthy litigation and Soliman’s ultimate default, the Civil Court entered a default judgment (the “Judgment”) against Solimán in the amount of $110,695, consisting of $85,000 of compensatory damages and $25,000 of punitive damages (plus costs). Thereafter, Solimán filed a chapter 7 bankruptcy petition. Vyshedsky countered with this adversary proceeding seeking to declare the debt, arising from the Judgment, non-dis-chargeable on the ground that the Debtor caused his injury “willfully and maliciously.” 11 U.S.C. § 523(a)(6). On September 4, 2014, the Court denied the Parties’ cross-motions for summary judgment without prejudice.2

On September 16, 2015, the Court held an evidentiary hearing to determine whether Soliman’s actions caused “a deliberate and intentional injury” to Vyshedsky, “not merely a deliberate or intentional act that leads to injury.” See Soliman, 515 B.R. at 188; see also Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Only two witnesses testified at trial: Solimán and Vyshedsky. The Parties presented conflicting accounts of the events that gave rise to the Assault. During trial, Solimán asserted self-defense as an affirmative defense to the denial of discharge claim. As explained below, the Court concludes that Soliman’s guilty plea to the assault charge precludes him from ■ asserting self-defense here. But even if preclusion does not bar a claim of self-defense, the Court concludes that Solimán failed to carry his burden of proof with respect to self-defense. The Court finds that Vyshedsky established by a preponderance of the evidence that Solimán caused VydsHedsky’s injury willfully and maliciously.

Based on the Court’s opportunity to see and hear the Parties’ testimony, the Court finds that Soliman’s testimony lacked credibility; Vyshedsky’s testimony, on the other hand, was credible. Accordingly, to the extent there were any discrepancies between Soliman’s testimony, on the one hand, and the Vyshedsky’s testimony, on the other hand, the Court 'credits Vyshed-sky’s testimony.

*696The findings set forth herein constitute the Court’s findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Rule 7052 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”). In making the findings of fact, the Court considered the credibility of the witnesses based on the Court’s observation of their live testimony and the rest of the evidence submitted at trial. The Court concludes that the Vyshedsky is entitled to a judgment that his damages are NON-DIS-CHARGEABLE under section 523(a)(6) of the Bankruptcy Code.

I. BACKGROUND

On July 27, 2000, Solimán, Vyshedsky, and a third-person, Sobon, met one another at an elevator bank in an apartment building located at 99 Hillside Avenue, New York, New York (the “Premises”), where they all lived. (Joint Pretrial Order at 2 (ECF Doc. #51); Def.’s FoF ¶2 (ECF Doc. # 54).) Solimán lived on the twenty-first floor (Hr’g Tr. at 16); Vyshed-sky lived on the nineteenth floor (Hr’g Tr. at 6). Solimán and Sobon quickly got into an argument about the order of protection that Sobon had previously obtained against Solimán.3 (Sept. 16, 2015 Hr’g Tr. at 8, 17-18.) Because of the order of protection, Solimán insisted that Sobon should not ride on the same elevator as him. (Def.’s FoF ¶ 5; Hr’g Tr. at 8, 17-18.) Solimán asked Sobon to wait for the next elevator. A senior citizen, who also lived in the building, soon arrived at the scene.4 (Hr’g Tr. at 8,18.) The presence of the senior citizen silenced the argument regarding whether Solimán and Vyshedsky should ride in the same elevator car. (Hr’g Tr. at 18.) Solimán, Sobon and Vydshedsky remained in the elevator while it ascended.

Vyshedsky testified that, while on the elevator, Sobon asked Vyshedsky whether he was willing to serve as a witness to the events that had unfolded (ie., that Solimán rode the elevator with Sobon, in violation of the order of the protection). (Hr’g Tr. at 8.) Vyshedsky agreed to corroborate Sobon’s story. (Id.) Despite their close proximity in the elevator, Solimán denies hearing this conversation. (Hr’g Tr. at 19.) Sobon got out of the elevator on the eighteenth floor, leaving Solimán and Vyshedsky together in the elevator. (Hr’g Tr. at 9,19.)

What happened next is mostly disputed. Both Vyshedsky and Solimán testified that Vyshedsky got out of the elevator on the nineteenth floor and that Solimán — despite living on the twenty-first floor — followed Vyshedsky off of the elevator. (Hr’g Tr. at 9, 19-20.) The encounter quickly became more heated. (See id.)

Vyshedsky testified that Solimán screamed at him as Vyshedsky walked away from the elevator. (Hr’g Tr. at 9.) Solimán yelled “you don’t know who you’re dealing with here.” (Id.) Vyshedsky further testified that Solimán used vulgar and obscene language towards him and, while Vyshedsky’s back was turned, Solimán charged him and slammed him against a wall, grabbed him by the throat, forcefully bit down on his nose, and spat on his face numerous times. (Id.)

Solimán, on the other hand, testified that he followed Vyshedsky off of the ele*697vator to explain the situation with Sobon. (Hr’g Tr. at 20.) However, for reasons unknown to Solimán, Vyshedsky turned around and, unprovoked, spat in Soliman’s face twice. (Id.) Solimán admits that he used profanity against Vyshedsky, as Vyshedsky walked away from Solimán. (Id. at 21.) When Vyshedsky was approximately 30 feet down the hall, Solimán testified that Vyshedsky turned around, facing in Soliman’s direction, brandished a knife, and began walking towards Solimán. (Id. at 21-22.) Solimán then “ran towards [Vyshedsky]” and struggled with Vyshed-sky to restrain him up against a wall. (Id: at 23.) As Solimán restrained Vyshedsky with both hands, Vyshedsky pointed the knife towards him. (Id. at 23-24.) Soli-mán responded by biting Vyshedsky’s nose. (Id. at 24.) Solimán testified that while he was biting down on the Vyshed-sky’s nose, he told Vyshedsky to “stop.” (Id.) Vyshedsky nodded his head in agreement, which allowed the two men to break free from one another. (Id.) Vyshedsky testified that he did not have a knife. (Id. at 10.)5

Solimán was arrested for the Assault, and an order of protection was issued against Solimán (the ‘Vyshedsky Protection Order”), requiring him to stay away from Vyshedsky. (Pl.’s FoF ¶¶ 6-7.) On March 7, 2001, Solimán pled guilty to assault in the third degree, a misdemeanor. (See the “Prior Opinion,” ECF Doc. #42 at 5.) In his plea allocution, Solimán admitted that he assaulted Vyshedsky by biting his nose. (Id.) The plea allocution does not mention self-defense.

On July 5, 2001, Vyshedsky filed a civil action in New York State Supreme Court seeking damages for assault and battery. (Id.) The case was transferred to the Civil Court on February 6, 2004. (Id.) After Solimán and his counsel failed to appear for either the scheduled trial, or the subsequent damages inquest, the court conducted the Inquest. (Id.) On July 21, 2011, the Civil Court entered the Judgment against Solimán in the amount of $110,695. (Id.) The judgment was not appealed, vacated, or modified, and is now final.

On October 30, 2012, Solimán filed a voluntary petition for relief under chapter 7. (Case No. 12-14444, ECF Doc. # 1.) The Debtor moved for relief from the automatic stay to seek to have the state court default judgment vacated (the “Lift Stay Motion,” ECF Doc. # 12, Case No. 12-14444) and the Court entered an Order Granting Debtor’s Motion for Relief From Automatic Stay to Vacate Default Judgment (the “Order,” ECF Doc. # 17, Case No. 12-14444). The Debtor further filed a Motion to Stay Adversary Proceeding (the “First Stay Motion,” ECF Doc. # 18). The motion was unopposed, and on October 10, 2013, the Court entered the Order Granting Motion to Stay Adversary Proceeding (the “Stay Order,” ECF Doc. #21), staying the Adversary Proceeding for six (6) months and requiring the Defendant to commence an action in state court to seek to avoid the Judgment.

On October 21, 2013, the Solimán moved to vacate the default judgment in Civil Court. Vydshedsky opposed the Soliman’s motion. (Prior Opinion at 6.) On December 13, 2013, the Civil Court denied the Soliman’s motion. (Id.) The Civil Court found that the Solimán failed to meet his burden of showing that he (1) had a reasonable excuse for his failure to appear in the original proceeding and (2) has a potentially meritorious defense to the underlying action. The Civil Court found that, even if the Solimán could demonstrate a *698reasonable excuse for his failure to appear at the Inquest, he cannot establish any potentially meritorious defense to the action because of his guilty plea. Vyshedsky submitted to the Civil Court the plea allo-cution transcript in which Solimán admitted that he assaulted Vyshedsky on July 27, 2000 by biting into his nose. (See Vyshedsky Aff. Ex. D; Moss Decl. Ex. Á.) The Civil Court determined that the guilty plea should be given collateral estoppel effect in the subsequent civil proceeding.

This Court denied Debtor’s second stay motion on April 10, 2014, and directed the parties to file their cross-motions for summary judgment.6 On September 4, 2014, the Court denied both summary judgment motions without prejudice, finding that an evidentiary hearing was required on the issue “whether Soliman’s actions were ‘a deliberate and intentional injury’ to Vysh-edsky — ‘not merely a deliberate or intentional act that leads to injury.’” (Prior Opinion at 4 (quoting Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)).)

II. DISCUSSION

A. Section 523(a)(6): The Legal Elements

A bankruptcy discharge covers all prepetition debts, other than debts expressly excepted from discharge by section 523 of the Bankruptcy Code. Consistent with the Bankruptcy Code’s fresh start policy, courts nevertheless construe the exceptions enumerated in section 523 narrowly against the creditor in favor of the debtor. Soliman, 523 B.R. at 190-91; Lubit v. Chase (In re Chase), 372 B.R. 125, 128 (Bankr.S.D.N.Y.2007) (citing Nat’l Union Fire Ins. Co. v. Bonnanzio (In re Bonnanzio), 91 F.3d 296, 300 (2d Cir. 1996)). As relevant to the facts in this case, section 523(a)(6) of the Bankruptcy Code excepts from discharge a debt “for willful and malicious injury by the debtor to another entity.” 11 U.S.C. § 523(a)(6).7 “The terms ‘willful’ and ‘malicious’ are separate elements, and both elements must be satisfied.” In re Greene, 397 B.R. 688, 693 (Bankr.S.D.N.Y.2008) (citing Rupert v. Krautheimer (In re Krautheimer), 241 B.R. 330, 340 (Bankr.S.D.N.Y.1999)). “The willful element is satisfied when a person deliberately causes an injury to another, while the malicious prong requires that such action be unjustified or without just cause.” In re Greene, 397 B.R. at 695. The plaintiff bears the burden of proving that the debtor acted willfully and maliciously by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).

a. Willful

To establish that a debtor acted willfully under section 523(a)(6), the plaintiff must demonstrate that the injury in question was “a deliberate or intentional injury, not merely a deliberate or inten*699tional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998); Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.2006) (quoting Kawaauhau, 523 U.S. at 61-62, 118 S.Ct. 974). A willful injury does not include “recklessly or negligently inflicted injuries.” Kawaauhau, 523 U.S. at 64, 118 S.Ct. 974. Rather, a person intends to cause injury when he “desires to cause consequences of his act, or ... he believes that the consequences are substantially certain to result from it.” Restatement (Seoond) OF Torts § 8A (1965). “[T]o satisfy the ‘willful’ element of Bankruptcy Code [section] 523(a)(6), the plaintiff must prove by a preponderance of the evidence that the debtor actually intended to injure the victim, or engaged in conduct that was substantially certain to cause injury.” In re Margulies, 2013 WL 2149610, at *3 (Bankr.S.D.N.Y.2013) (citing Jendusa-Nicolai v. Larsen, 677 F.3d 320, 324 (7th Cir.2012); Maxfield v. Jennings (In re Jennings), 670 F.3d 1329, 1334 (11th Cir. 2012); Morris v. Brown (In re Brown), 489 Fed.Appx. 890, 895 (6th Cir.2012); Guerra & Moore Ltd. v. Cantu (In re Cantu), 389 Fed.Appx. 342, 344-45 (5th Cir.2010); Ormsby v. First Am. Title Co. of Nev. (In re Ormsby), 591 F.3d 1199, 1206 (9th Cir. 2010); Blocker v. Patch (In re Patch), 526 F.3d 1176, 1180 (8th Cir.2008); In re Granoff, 250 Fed.Appx. 494, 495 (3d Cir.2007); Panalis v. Moore (In re Moore), 357 F.3d 1125, 1129 (10th Cir.2004)).

b. Malicious

To establish that a debtor acted maliciously, the plaintiff must prove that the debtor’s act was “wrongful and without just cause or excuse, even in the absence of personal hatred, spite, or ill-will.” Navistar Fin. Corp. v. Stelluti (In re Stelluti), 94 F.3d 84, 87 (2d Cir.1996). In determining whether a debtor acted maliciously, courts will consider the totality of the circumstances. Id. at 88 (stating that “[i]m-plied malice may be demonstrated ‘by the acts and conduct of the debtor in the context of [the] surrounding circumstances’ ” (quoting First Nat’l Bank of Md. v. Stanley (In re Stanley), 66 F.3d 664, 668 (4th Cir.1995))). Malice is implied when “anyone of reasonable intelligence knows that the act in question is contrary to commonly accepted duties in the ordinary relationships among people, and injurious to another.” Navistar Fin. Corp. v. Stelluti (In re Stelluti), 167 B.R. 29, 33 (Bankr. S.D.N.Y.1994) (internal quotation marks omitted), aff'd, 94 F.3d 84 (2d Cir.1996).

c. Solimán Acted Willfully and Maliciously When He Assaulted Vyshedsky

There was no real dispute at trial that Solimán acted willfully when he bit Vysh-edsky’s nose in their altercation. In fact, in Soliman’s pretrial brief (Def.’s PT Br. at 4), and later at trial (Sept. 16, 2015 Hr’g Tr. at 22-24), Solimán attempted to justify his actions by claiming that he bit the Vyshedsky’s nose in self-defense. This is tantamount to an admission that Vyshed-sky’s injury was willfully caused. See In re Greene, 397 B.R. at 695 (citing to In re Taylor, 322 B.R. 306, 309 (Bankr.N.D.Ohio 2004) (raising the self-defense justification in effect constitutes an admission that the underlying act was done willfully)). Irrespective of the Debtor’s self-defense claim, the evidence demonstrates that Soliman’s actions were willful. It is indisputable that when a person pins a victim up against a wall and uses his teeth to forcefully bite down on the victim’s flesh, that the person’s actions were either intended to injure the victim or were substantially certain to cause injury.

The facts at trial also establish that Soli-mán acted maliciously. As described above, the malicious prong of section 523(a)(6) requires that an action be wrong*700ful and without just cause or excuse. There is no dispute that Solimán acted wrongfully when he bit Vyshedsky’s nose in their altercation. Photographs of Vysh-edsky taken after the Assault clearly show that the Vyshedsky suffered severe injuries from the Assault. (Pl.’s Ex. 3.) Vysh-edsky’s nose contained deep bite marks along the bridge of his nose reaching down to the columella. The bite marks, which spanned over three-quarters of the colu-mella, required numerous stitches. Absent a valid self-defense claim, there, is no just cause or excuse for Soliman’s actions. Moreover, in light of the self-defense claim, “it cannot be overlooked that by raising an affirmative defense ... [Soli-mán] has ostensibly admitted that he acted with malice ...thus satisfying the malicious prong of section 523(a)(6). In re Taylor, 322 B.R. at 309. ' Accordingly, the crux of the issue turns on whether Solimán is precluded from asserting self-defense, and even if he may do so, whether he has established self-defense by a preponderance of the evidence.

B. Self-Defense Is an Affirmative Defense

Unless preclusion principles ' bar assertion of self-defense, a debtor may raise self-defense as an affirmative defense to a non-dischargeability claim under section 523(a)(6). See In re Taylor, 322 B.R. at 309 (“Acts properly taken, therefore, in self-defense provide a valid defense to an action brought under § 523(a)(6); this has always been understood.”); see also In re Greene, 397 B.R. at 695 (recognizing that a debtor’s claim of self-defense could “provide[ ] justification or cause for [the debt- or’s] willful action”). A self-defense claim is an affirmative defense and, as such, the debtor bears the burden of proof with respect to self-defense. In re Taylor, 322 B.R. at 309.

In Greene, the court concluded that “[i]n the State of New York, a guilty plea is accorded the same preclusive effect as a conviction after a trial. Although the elements of the crime have not been litigated, the issues have necessarily been judicially determined by the plea. Furthermore, a defendant pleading guilty has had a full and fair opportunity to litigate his case, even though he has elected not to contest the accusations. He should not expect the courts to look behind convictions based on such pleas in order to relieve [him] from civil consequences which may follow.” 397 B.R. at 694 (internal quotation marks and citations omitted). Since New York recognizes self-defense as a possible defense to a criminal assault charge, a guilty plea precludes a criminal defendant from later asserting self-defense in a civil assault case, or as here, as a defense to a denial of discharge.8 N.Y. Penal Law § 35.15; see also In re Graham, 455 B.R. 227 (Bankr.D.Colo.2011) (stating that the “[d]efendant’s guilty plea ... ha[d] the consequence of waiving the affirmative defense of self-defense”); In re Granoff, No. 05-33028, 2006 WL 1997408 (Bankr.E.D.Pa. June 6, 2006) (stating that “the criminal conviction is preclusive on the issue of self-defense as a justification for his conduct”); Cf. Grayes v. DiStasio, 166 A.D.2d 261, 262-63, 560 N.Y.S.2d 636 (1990) (stating that “a criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue”).

But even if preclusion does not bar the assertion of self-defense here, the *701Court concludes that Solimán failed to establish by a preponderance of the evidence the necessary elements for self-defense under both state and federal standards.

a. Self-Defense Under Federal Common Law

In federal courts, the law pertaining to self-defense is a matter of federal common law. In re Greene, 397 B.R. at 695 (citing to United States v. Desinor, 525 F.3d 193, 199 (2d Cir.2008); United States v. Butler, 485 F.3d 569, 572 (10th Cir.2007)).

[The Tenth Circuit has held] that a claim of self-defense requires a party to show the following: (i) that he was under an unlawful, imminent and impending threat of death or serious bodily injury; (ii) that he had not recklessly or negligently placed himself in such a situation; (iii) that he had no reasonable, legal alternative to violating the law — a chance both the refuse to do the criminal act and to avoid the threatened harm; and (iv) that a direct causal relationship would have been reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.

In re Greene, 397 B.R. at 695 (citing United States v. Butler, 485 F.3d. 569 (10th Cir.2007)).

Soliman’s actions fail under the four prongs of the self-defense doctrine as construed under federal common law. First, Solimán was not under imminent threat of death or serious bodily injury. There is no evidence to substantiate Soliman’s allegation that the Vyshedsky brandished a knife. Vyshedsky denied it, and the Court credits his testimony. Moreover, even if Vyshedsky had brandished a knife during the Assault, Vyshedsky would have been standing approximately thirty feet away— the length of two minivans — from Solimán when Vyshedsky allegedly brandished a knife. Solimán was not under imminent threat of death or serious bodily injury, under these facts. He could have safely retreated and avoided the Assault.

Second, the sequence of events demonstrates that Solimán placed himself in the situation. Solimán (i) rode on the elevator with Sobon and Vyshedsky, despite Soli-man’s argument with Sobon; (ii) followed Vyshedsky off of the elevator; and (iii) ran towards Vyshedsky when Vyshedsky allegedly brandished a knife from thirty feet away, if Soliman’s version of events is credited (which it is not).

Third, once Solimán followed Vyshedsky off of the elevator, Solimán could have avoided any confrontation by retreating instead of confronting Vyshedsky. If Vyshedsky drew a knife from thirty feet away, Solimán did not need to bite Vysh-edsky’s nose in self-defense.

Finally, there is no reasonable causal relationship between Soliman’s act and the avoidance of the threatened harm. Even if Soliman’s version of the events is credited, the bite was not a reasonable use of force in the totality of the circumstances. Davis v. Strack, 270 F.3d 111, 129 (2d Cir.2001).

b. Self-Defense Under New York Law

Under New York law, a person is permitted to use physical force only to the extent reasonably necessary to defend oneself from the imminent use of unlawful ordinary physical force. N.Y. Penal Law § 35.15 (emphasis added).9 Accordingly, “the force permitted [in self-defense] is related to the degree of force reasonably believed necessary to repel various *702threats.” Collins v. Artus, No. 08 Civ. 1936(PKC)(JCF), 2009 WL 2633636, at *5 (S.D.N.Y. Aug. 26, 2009) (internal quotation marks and citation omitted). For example, a person may use deadly'force to defend against another’s use of deadly force, subject to the circumstances. See id.

Deadly physical force is defined very broadly in the Penal Law as “physical force which, under the circumstances in which it is used, is readily capable- of causing death or other serious physical injury.” N.Y. Penal Law § 10.00(11) (emphasis added). Serious physical injury is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” N.Y. Penal Law § 10.00(10). As a matter of law, under New York law, “the use of a knife constitutes deadly physical force.” In re Greene, 397 B.R. at 696.

A duty to retreat, under New York law, arises in the context of self-defense to repel deadly force.10 Bulla v. Lempke, No. 06 Civ. 1156(JSR)(GWG), 2006 WL 2457945 (S.D.N.Y. Aug. 25, 2006) (“In New York, before using deadly physical force in self-defense, a defendant has a duty to retreat if he or she may do so in complete safety. However, there is no duty to retreal before defending oneself with ordinary physical force.” (emphasis added)). Under N.Y. Penal Law § 35.15(2)(a), deadly physical force cannot be used if retreat can be made in complete safety. And such duty does “not arise until the point at which [the other person’s use of] deadly physical force against him is imminent.” Davis v. Strack, 270 F.3d at 126 (internal quotation marks and citation omitted).

In evaluating an individual’s claim of self-defense, a court must determine the “reasonableness of a defendant’s fear” and base such a determination “on the circumstances facing a defendant or his situation.” Id. at 129 (citations omitted). This analysis includes consideration of “any relevant knowledge the defendant had about that person, including the perceived assailant’s physical attributes and any prior experiences [the debtor] had which could provide a reasonable basis for a belief that [the] person’s intentions were to injure ... him.” Id. (internal quotation marks and citation omitted).

Solimán relies on a self-defense claim to justify the injury that he caused to Vysh-edsky. However, Solimán may only invoke a self-defense claim to the extent that he faced actual or imminent harm of physical force during the course of the altercation. The Court credits Vyshedsky’s testimony (and rejects Soliman’s testimony) that Vyshedsky did not threaten Solimán with a knife. Aside from Soliman’s allegation that Vyshedsky brandished a knife, there is no evidence that Vyshedsky used any force against Solimán, let alone deadly *703force. Given that the Court finds that Vyshedsky did not use or attempt to use physical force against Solimán, there is no justification for Soliman’s actions.

Notably, even if the Court were to find that Vyshedsky brandished a knife during the Assault, Soliman’s self-defense claim nevertheless fails because, among other things, there was no imminent threat of harm.

i. The Facts and Circumstances Do Not Demonstrate that There was a Reasonable Basis to Believe that Solimán was in Threat of Imminent Harm

The Court finds that Solimán did not prove that he faced imminent harm.11 A condition precedent to the use of a self-defense claim is that a person must face “the use or imminent use of unlawful physical force.” N.Y. Penal Law § 35.15(1); see also People v. Wimberly, 19 A.D.3d 518, 519, 798 N.Y.S.2d 470 (2d Dept.2005) (stating that “^Justification is not a defense to the use of deadly physical force unless the defendant reasonably believed that the victim was about to use deadly physical force against her and she was unable to retreat safely”). Accordingly, there can be no self-defense claim where there is no actual or imminent harm.

Solimán testified that Vyshedsky was approximately thirty feet away when he allegedly brandished the knife. Under these facts, the Court finds that Solimán was not under imminent threat of death or serious bodily injury. Accordingly, Soli-mán does not have the right to rely on justification as defense.

ii. Soliman’s Actions Were Not Reasonable Under the Circumstances

Soliman’s actions do not support a self-defense claim under New York law. As described above, New York’s self-defense standard is largely based on the reasonableness of the defendant’s fear and actions. Vyshedsky and Solimán testified that they were strangers before the date of the Assault. As such, Solimán would have had little to no relevant knowledge regarding Vyshedsky’s attributes, other than those attributes that Solimán could reasonably perceive on the day of Assault (e.g., Vyshedsky’s physical characteristics and general demeanor).

Soliman’s chosen course of action — biting Vyshedsky’s .nose — was not reasonable under the circumstances. Based on the Court’s observations, there are notable differences in the physique and demeanor of Vyshedsky and Solimán. Vyshedsky is of short to average stature and thin build; Solimán is much taller and powerfully built and with military training. Based on the physical differences between the two men, it is questionable whether Soliman’s alleged fear of Vyshedsky was reasonable. Solimán initiated each escalation of the altercation; his actions were not responses *704made in self-defense, but rather served to incite the physical confrontation.

III. CONCLUSION

Based on the findings of fact and conclusions of law, the Court concludes that Soli-manes judgment debt owed to Vyshedsky is not dischargeable. Plaintiffs counsel shall submit a proposed form of Judgement on presentment.

IT IS SO ORDERED.