Summary
rejecting "conclusory allegations that a plaintiff did not disclose a cause of action in a prior bankruptcy proceeding because the plaintiff was not aware of the facts giving rise to the cause of action"
Summary of this case from Reyes v. Sears Holdings Corp.Opinion
No. 168 SSM 16.
Decided September 12, 2006.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered November 14, 2005. The Appellate Division (1) dismissed plaintiffs appeal from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), which had denied, as academic, plaintiffs motion for summary judgment on the issue of liability and granted defendant's cross motion for summary judgment dismissing the complaint on the ground that plaintiff lacked the legal capacity to sue, and (2) affirmed a judgment of that court (Denise E Molia, J) , which, upon the order, was in favor of defendant and against plaintiff, dismissing the complaint. The following question was certified by the Appellate Division: "Was the decision and order of this court dated November 14, 2005, properly made?".
Whelan v. Longo, 23 AD3d 459, affirmed.
Jeffrey Levitt, Amityville, for appellant.
Paul J. Israelson, Plainview, for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSEN-BLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question not answered on the ground that it is unnecessary. Plaintiff knew or should have known of the facts allegedly giving rise to the legal malpractice cause of action at the time she filed her February 2002 bankruptcy petition ( see Dynamics Corp. of Am. v. Marine Midland Bank-N.Y., 69 NY2d 191). Thus, plaintiffs failure to disclose that cause of action in her bankruptcy petition deprived her of the legal capacity to sue in this action ( id.).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.