BROMLEY v. FLEET BANK (1997)

In an action, inter alia, to recover damages for breach of an oral modification agreement, the plaintiffs appeal from an order of the Supreme Court, Orange County (Owen, J.), dated April 9, 1996, which granted the defendant's renewed motion for summary judgment dismissing the complaint, and denied the plaintiffs' cross motion for summary judgment.

ORDERED that the order is affirmed, with costs.

 The Bankruptcy Code broadly defines the property of a debtor to include causes of action existing at the time of the commencement of the bankruptcy action (see, 11 U.S.C. § 541[a][1];  Pako Corp. v. Citytrust, 109 B.R. 368).   The trustee of the estate of the bankrupt is vested with title to all of the bankrupt's property as of the date of the filing of the petition, including rights and choses in action existing at that time (see, 11 U.S.C. § 541[a][1];  Weiss v. Goldfeder, 201 A.D.2d 644, 645, 608 N.Y.S.2d 242).   The trustee, however, may elect to abandon assets of the bankrupt and, following abandonment, title revests in the bankrupt (see, Scharmer v. Carrollton Mfg. Co., 6th Cir., 525 F.2d 95, 98).

 The bankrupt must schedule the causes of action as assets on the bankruptcy petition in order for the trustee to formally abandon the claims.   This is so since “[p]roperty can be ‘abandoned’ only where the trustee * * * knows of it and manifests an intent to abandon it, inasmuch as revesting depends upon the fact that it has been consciously rejected or relinquished as part of the estate” (Dynamics Corp. of Am. v. Marine Midland Bank-New York, 69 N.Y.2d 191, 196, 513 N.Y.S.2d 91, 505 N.E.2d 601;  see also, Weiss v Goldfeder, supra;  Ervolino v. Scappatura, 162 A.D.2d 654, 557 N.Y.S.2d 99;  Schepmoes v. Hilles, 122 A.D.2d 35, 504 N.Y.S.2d 196).

 The Supreme Court in this case properly granted the defendant's motion for summary judgment on the ground that the plaintiffs lacked standing to sue because they failed to properly list on the bankruptcy petition the present claims regarding assets about which they knew or should have known when the bankruptcy petition was filed (see, Cafferty v. Thompson, 223 A.D.2d 99, 644 N.Y.S.2d 584).   The plaintiffs' contentions that they should be excepted from the above rule because they allegedly informed the trustees of the claims against the defendant after the closing of the bankruptcy case are without merit.  “[A]ctual knowledge by the trustee of a claim is no substitute for improper scheduling” (Donaldson, Lufkin & Jenrette Sec. Corp. v. Mathiasen, 207 A.D.2d 280, 282, 615 N.Y.S.2d 384).   Moreover, the letter dated August 24, 1993, from the plaintiffs' attorney to the trustee long after the closing of the bankruptcy case, inquiring as to “whether or not any interest exists on behalf of yourself as trustee as to any cause of action which may be contemplated against the Norstar Bank [the defendant's predecessor] arising out of their actions in connection with Mrs. Bromley's loans” is too vague and inconclusive to support a finding that the trustee knowingly and intelligently abandoned these assets (see, Donaldson, Lufkin & Jenrette Sec. Corp. v. Mathiasen, supra;  Weiss v. Goldfeder, supra).

In view of our determination, we need not reach the plaintiffs' remaining contentions.

MEMORANDUM BY THE COURT.