Summary
finding that plaintiff lacked the capacity to sue the defendant because his causes of action, which he failed to disclose in his petition, vested in the bankruptcy trustee
Summary of this case from In re HydeOpinion
Submitted April 21, 1999
June 14, 1999
In an action to recover damages for medical malpractice, etc., the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated May 22, 1998, as, upon granting his motion to reargue, adhered to so much of a prior order of the same court entered December 17, 1997, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Carol Pinto, and granted that branch of the cross motion of the nonparty bankruptcy trustee, Alan B. Mendelsohn, on behalf of the bankruptcy estate of the plaintiff Richard Pinto, which was for leave to be substituted for the plaintiff Richard Pinto.
Lewis, Johs, Avallone, Aviles Kaufman, Melville, N.Y. (John M. Denby of counsel), for appellant.
Pollack, Pollack, Isaac DeCicco, New York, N.Y. (Robert Rosen and Brian J. Isaac of counsel), for respondent Richard Pinto.
Douglas M. Reda, Mineola, N.Y., for respondent Carol Pinto.
CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, DANIEL W. JOY, MYRIAM J. ALTMAN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the bankruptcy trustee which was for leave to be substituted for the plaintiff Richard Pinto and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the defendant.
During a deposition of the plaintiff Richard Pinto in the instant action it was discovered that he had filed a bankruptcy petition in a separate bankruptcy proceeding but failed to disclose in the petition's schedule of assets the pendency of this action. Accordingly, the plaintiff Richard Pinto lacked the capacity to commence this action against the defendant, as his causes of action vested in the bankruptcy trustee ( see, Weitz v. Lewin, 251 A.D.2d 402; Hart Sys. v. Arvee Sys., 244 A.D.2d 527; Quiros v. Polow, 135 A.D.2d 697, 699). In light of the defect based on a lack of capacity to sue, the trustee, who re-opened the bankruptcy proceeding, could not be substituted for Richard Pinto in this action ( see, Reynolds v. Blue Cross of Northeastern N.Y., 210 A.D.2d 619; Matter of CM Plastics, 168 A.D.2d 160, 162). Instead, the trustee must commence a new action in a representative capacity on behalf of Richard Pinto's bankruptcy estate and, in doing so, he will receive the benefit of the 6-month extension embodied in CPLR 205 ( see, Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 252; George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 179; Goldberg v. Littauer Hosp. Assn., 160 Misc.2d 571).
The Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the derivative action for loss of consortium asserted by the plaintiff Carol Pinto, who was not a party to the bankruptcy proceeding ( see, Buckley v. National Frgt., 220 A.D.2d 155, affd 90 N.Y.2d 210, 215-216, 218; Champagne v. State Farm Mut. Auto. Ins. Co., 185 A.D.2d 835, 837). Upon the recommencement of a new action by the bankruptcy trustee, the derivative action by Carol Pinto can be joined with the trustee's action ( see, Buckley v. National Frgt., supra).