Opinion
No. 3233.
April 1, 2008.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered April 18, 2007, which, after granting defendant's trial motion to amend its answer to assert lack of standing, dismissed the complaint on that ground, unanimously affirmed, without costs.
Bosco, Bisignano Mascolo, LLP, Staten Island (James A. Maleady of counsel), for appellant.
Garbarini Scher, P.C., New York (William D. Buckley of counsel), for respondent.
Before: Gonzalez, J.P., Williams, Catterson and Moskowitz, JJ.
On or about February 21, 2001, plaintiff filed a petition in the United States Bankruptcy Court for the District of New Jersey. Some two months later, on or about April 17, she sustained injury due to the alleged negligence of defendant. On May 29, 2001, the Bankruptcy Court issued an order of discharge, and on June 22 the trustee certified that plaintiff's bankruptcy estate had been fully administered. The instant action was commenced in March 2002.
It is undisputed that plaintiff never reported to the Bankruptcy Court or her court-appointed trustee the existence of any potential claim for damages from the incident that occurred at defendant hospital. When defendant eventually learned of the bankruptcy proceeding, it was permitted to amend its answer to plead the affirmative defense of lack of standing.
It is well settled that the failure to schedule a legal claim as an asset in a bankruptcy proceeding deprives the debtor of standing to raise it in a subsequent legal action ( see Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191; Gazes v Bennett, 38 AD3d 287). Although plaintiff argues that her claim against defendant survived because it accrued after she had filed for bankruptcy, the fact remains that whether the claim asserted in the complaint arose prior to the filing of the bankruptcy petition or afterward, such claim is still the property of the bankrupt's estate pursuant to the Bankruptcy Code ( Williams v Stein, 6 AD3d 197). Since it is clear that plaintiff's claim against defendant accrued while her bankruptcy proceeding was still pending, she could not institute the present action.