Opinion
03-07-2017
Joseph KLEINPLATZ, Plaintiff–Appellant, v. NATHAN L. DEMBIN & ASSOCIATES, P.C., et al., Defendants–Respondents, Tommy H. Brewer, Jr., Defendant.
Jonathan M. Landsman, New York (Jonathan M. Landsman of counsel), for appellant. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York (Robert S. Deutsch of counsel), for respondent.
Jonathan M. Landsman, New York (Jonathan M. Landsman of counsel), for appellant.
Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York (Robert S. Deutsch of counsel), for respondent.
SWEENY, J.P., RICHTER, MAZZARELLI, MANZANET–DANIELS, FEINMAN, JJ.
Judgment, Supreme Court, New York County (Shlomo Hagler, J.), entered June 10, 2015, dismissing the complaint pursuant to an order, same court and Justice, entered March 24, 2015, unanimously affirmed, on the ground of judicial estoppel.
Plaintiff's prolonged failure to disclose the instant lawsuit to the bankruptcy court renders him judicially estopped from pursuing the claim (Koch v. National Basketball Assn., 245 A.D.2d 230, 230–231, 666 N.Y.S.2d 630 [1st Dept.1997] ; Becerril v. City of N.Y. Dept. of Health & Mental Hygiene, 110 A.D.3d 517, 519, 973 N.Y.S.2d 586 [1st Dept.2013], lv. denied 23 N.Y.3d 905, 2014 WL 2609500 [2014] ). While the error initially may not have been intentional, as plaintiff had not commenced the legal malpractice claim when he filed his Chapter 13 petition, and was pro se at the time and may not have known that he was required to disclose such a suit, he failed to disclose the lawsuit to the bankruptcy court even after he commenced it, even after he retained bankruptcy counsel, and even after defendants cited the failure to disclose it in an unsuccessful summary judgment motion made years earlier, in June 2011. Thus, plaintiff's ongoing failure to correct the omission suggests it was not merely a good faith mistake or unintentional (compare
Murray v. Board of Educ. of City of New York, 248 B.R. 484, 487 [S.D.N.Y.2000] ; United States v. Hussein, 178 F.3d 125, 130 [2d Cir.1999] ).
Because we determine that dismissal is appropriate on this ground, it is unnecessary to consider whether plaintiff otherwise had standing to pursue the claim.
The court providently exercised its discretion in granting leave to amend the answer (CPLR 3025[b] ; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 [1st Dept.2007] ). There was no significant prejudice to plaintiff from the delay to seek leave; plaintiff cannot claim surprise regarding his own failure to disclose the instant lawsuit in the bankruptcy proceeding (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983] ). As previously noted, plaintiff failed to disclose the instant lawsuit to the bankruptcy court for years, even after he was alerted to the issue of nondisclosure.