Opinion
CA 03-02533.
Decided June 14, 2004.
Appeal from an order of the Supreme Court, Erie County (David J. Mahoney, J.), entered January 31, 2003. The order denied defendants' motion to dismiss the complaint in a personal injury action.
GIANGRECO LAW FIRM, P.C., BUFFALO (MARK G. GIANGRECO OF COUNSEL), RUPP, BAASE, PFALZGRAF, CUNNINGHAM COPPOLA LLC, FOR DEFENDANTS-APPELLANTS.
FRANCIS M. LETRO, BUFFALO (ROBERT L. VOLTZ OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Before: PRESENT: WISNER, J.P., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed with costs.
Memorandum: Supreme Court properly denied defendants' motion to dismiss the complaint in this personal injury action for lack of capacity to sue. In support of the motion, defendants contended that plaintiff Margaret Kenney failed to disclose the action in her Chapter 13 bankruptcy schedule of assets, and that the action belonged to the bankruptcy estate. "[A] Chapter 13 debtor retains standing to litigate causes of action that, outside of bankruptcy, would belong to the debtor" ( In re Dawnwood Props./78, 209 F.3d 114, 116; see Olick v. Parker Parsley Petroleum Co., 145 F.3d 513, 515-516; Murray v. Board of Educ. of City of N.Y., 248 B.R. 484, 486; see also Matter of Miller [Berti], 1 A.D.3d 885, 886). Plaintiffs therefore "possessed the requisite capacity to maintain this . . . action" ( Giovinco v. Goldman, 276 A.D.2d 469, 469). Contrary to defendants' contention, "the doctrine of judicial estoppel is not applicable under the circumstances of this case" ( Miller, 1 A.D.3d at 885).
All concur, Martoche, J., not participating.