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Mizrahi v. Flaum

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 5, 2010

JENNIFER MIZRAHI, RESPONDENT,
v.
NEIL R. FLAUM, ET AL., APPELLANTS.

In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Marber, J.), entered April 21, 2009, which granted the motion of Kenneth P. Silverman, as Chapter 7 Trustee of the Bankruptcy Estate of Jennifer Mizrahi, to substitute Jennifer Mizrahi as the plaintiff in his place and to compel the defendants to accept service of a supplemental bill of particulars, and denied their cross motion to dismiss the action.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J. P., HOWARD MILLER, RANDALL T. ENG, L. PRISCILLA HALL, SANDRA L. SGROI, JJ.

(Index No. 2385/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

When the Bankruptcy Trustee, Kenneth P. Silverman, abandoned the instant legal malpractice claim at the conclusion of the bankruptcy proceedings, the claim immediately revested with the debtor, Jennifer Mizrahi (see 11 USCA § 554; Guiffrida v Storico Dev., LLC, 60 AD3d 1286; Culver v Parsons, 7 AD3d 931). Thus, the Supreme Court providently exercised its discretion in granting that branch of Silverman's motion which was to substitute Mizrahi as the plaintiff in his place (see CPLR 1003; JCD Farms v Juul-Nielsen, 300 AD2d 446; see also Silverman v Flaum, 42 AD3d 447). Furthermore, under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of Silverman's motion which was to compel the defendants to accept service of a supplemental bill of particulars fixing the alleged amount of damages (see CPLR 3043; Shahid v New York City Health & Hosps. Corp., 47 AD3d 798; Fortunato v Personal Woman's Care, P.C., 31 AD3d 370; Zenteno v Geils, 17 AD3d 457).

The defendants' remaining contentions are without merit.

DILLON, J. P., MILLER, ENG, HALL and SGROI, JJ., concur.

20100105

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