Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered February 11, 2010.
Paralikas v Global Asset Recovery, Inc.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on August 11, 2011
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $75.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this small claims action to recover for property damage to his automobile and for the conversion of his computer and cell phone. Following mandatory arbitration in which the arbitrator had awarded plaintiff the sum of $2,294.53, defendants demanded a trial de novo (Rules of the Chief Judge [22 NYCRR] § 28.12). After a non-jury trial, the District Court awarded plaintiff the principal sum of $75. As limited by his brief, plaintiff contends that the District Court erred in failing to re-affirm the arbitration award for damage to his automobile.
A debtor in a bankruptcy proceeding is required to list causes of action in the schedule of assets in the bankruptcy petition in order for the bankruptcy trustee to determine whether they should be abandoned or administered in the proceeding (see Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 195-196 ). The failure of a plaintiff to disclose a cause of action as an asset in a prior bankruptcy proceeding, the existence of which the plaintiff knew or should have known of at the time, deprives the plaintiff of the legal capacity to sue on the undisclosed claim (see Dynamics Corp. of Am., 69 NY2d at 195-196; Whelan v Longo, 7 NY3d 821, 822 ; Bajanov v Grossman, 36 AD3d 572 ; Santori v Met Life, 11 AD3d 597, 599 ).
In this small claims action, the proof at trial established that plaintiff had filed for bankruptcy and it was undisputed that neither cause of action sued upon herein, for property damage and for conversion, was listed in the schedule of assets in the bankruptcy proceeding, which plaintiff had commenced subsequent to the time when the subject causes of action had allegedly arisen. Consequently, plaintiff lost all rights to sue upon the causes of action in his own name (see Bajanov v Grossman, 36 AD3d 572; Hurtado v Castelli, 26 Misc 3d 92 [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, and as defendant has not cross-appealed, the judgment is affirmed.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: August ...