Summary
affirming dismissal of action that accrued prior to plaintiff's bankruptcy filing as the “action [could] not be maintained by the plaintiff in his individual capacity”
Summary of this case from In re AranaOpinion
No. 2006-05023.
December 18, 2007.
In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered March 22, 2006, which granted the defendants' motion pursuant to CPLR 3211 to dismiss the complaint.
Robbins Associates, P.C., New York, N.Y. (James A. Robbins of counsel), for appellant.
Kaufman Borgeest Ryan LLP, New York, N.Y. (A. Michael Furman and Kristopher M. Dennis of counsel), for respondents.
Before Spolzino, J.P., Fisher, Covello and McCarthy, JJ.
Ordered that the order is affirmed, with costs.
The evidentiary facts, as pleaded in the complaint and amplified in the plaintiffs affidavit in opposition to the defendants' motion to dismiss, establish that any legal malpractice cause of action necessarily accrued prior to the filing of the plaintiffs bankruptcy petition ( see McCoy v Feinman, 99 NY2d 295, 301; Iser v Kerrigan, 37 AD3d 662, 663). Therefore, upon commencement of the plaintiffs bankruptcy proceeding, the malpractice cause of action became "property of the estate" pursuant to the Bankruptcy Code ( 11 USC § 541 [a] [1], [7]; In re Strada Design Assoc., Inc., 326 BR 229, 235-237). Accordingly, this action may not be maintained by the plaintiff in his individual capacity, and the complaint should have been dismissed pursuant to CPLR 3211 (a) (3) for lack of legal capacity to sue ( see Williams v Stein, 6 AD3d 197, 198).
Contrary to the plaintiff's contention, the fact that the Supreme Court dismissed the complaint on other grounds and treated the capacity issue as "academic," does not preclude our review of the matter ( see e.g. Maguire v Beyer, 31 AD3d 621, 622; Matter of Broda v Monahan, 309 AD2d 959, 961; Re/Max Homes Estates v heist, 308 AD2d 439, 440) in the interest of judicial economy, since the issue was clearly raised by the defendants in their motion and was fully briefed by the parties.
The plaintiffs cause of action alleging breach of contract, which was duplicative of the legal malpractice claim and arose from the same facts, was also properly dismissed ( see Shivers v Siegel, 11 AD3d 447).
In light of our determination, we do not reach the parties' remaining contentions.