New York Supreme and/or Appellate Courts Appellate Term, First Department
November 29, 2011
RICKEL HOME CENTERS, INC.,
Youngelman v Rickel Home Ctrs., Inc.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered January 4, 2010, which granted defendant's motion for summary judgment dismissing the complaint.
Order (Ben R. Barbato, J.), entered January 4, 2010, affirmed, with $10 costs.
We agree with Civil Court that plaintiff's failure to disclose the underlying personal injury cause of action as an asset in his prior bankruptcy proceeding -- the existence of which he knew or should have known upon filing the bankruptcy petition -- precluded him from maintaining this action (see Whelan v Longo, 7 NY3d 821, 822 ; see Gray v City of New York, 58 AD3d 448, 449 ). "While plaintiff maintains that his trustee was aware of the tort claim, actual knowledge by a trustee of a claim is not a substitute for proper scheduling" in the bankruptcy proceeding (Rudin v Hospital for Joint Diseases, 34 AD3d 376 , quoting Burton v 215 E. 77th Assoc., 284 AD2d 122 ; see Donaldson, Lufkin & Jenrette Sec. Corp. v Mathiasen, 207 AD2d 280, 282 ). Moreover, the record contains no competent proof that the trustee abandoned the claim (see 11 USC § 554; Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 196 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 29, 2011
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