GUZMAN v. PROMESA ADMINISTRATIVE SERVICES ORGANIZATION INC (2018)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr. J.), entered on or about November 9, 2017, which denied defendants Promesa Administrative Services Organization, Inc. and Promesa Systems Inc.'s motion for leave to serve a second amended answer and for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed.  The Clerk is directed to enter judgment accordingly.  Appeal from order, same court and Justice, entered on or about September 18, 2017, unanimously dismissed, without costs, as academic.

The motion court improvidently denied defendants' motion to amend their answer and dismiss the complaint unless plaintiff amended her Chapter 13 Bankruptcy Petition within 30 days of service of the order to include this action in her schedule of assets, because plaintiff took an inconsistent position during the bankruptcy proceeding by claiming that she did not have any other legal claims than those listed on her schedule of assets and liabilities which was adopted by the Bankruptcy Court when it confirmed the plan (see Kleinplatz v. Nathan L. Dembin & Assoc., P.C., 148 A.D.3d 431, 431, 48 N.Y.S.3d 659 [1st Dept. 2017]; Horvath v. Gumley Haft Kleier Inc., 148 A.D.3d 437, 48 N.Y.S.3d 661 [1st Dept. 2017]; Gray v. City of New York, 58 A.D.3d 448, 449, 872 N.Y.S.2d 7 [1st Dept. 2009], lv dismissed in part, denied in part 12 N.Y.3d 802, 879 N.Y.S.2d 46, 906 N.E.2d 1080 [2009] ).

Since the complaint must be dismissed, the appeal from the September 18, 2017 order denying defendants' motion for summary judgment has been rendered academic (see Encore Coll. Bookstores, Inc. v. City Univ. of N.Y., 75 A.D.3d 442, 443, 905 N.Y.S.2d 573 [1st Dept. 2010] ).