Vanessa Ladson, appellant, v. Steven E. Fessel, etc., respondent. (2011)

Argued—May 26, 2011

DECISION & ORDER

In an action to recover damages for podiatric malpractice, the plaintiff appeals, as limited by her brief, from so much of an amended order of the Supreme Court, Rockland County (Walsh II, J.), entered August 3, 2010, as granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (3).

ORDERED that the amended order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiff's contention, in accordance with the terms of CPLR 3211(e), the defendant did not waive the defense of the plaintiff's lack of capacity to sue (see CPLR 3211[a][3] ).  “The fact that [the defendant] failed to formally amend [his] answer and chose to move to dismiss instead should make no difference in this case” (Bennett v First Natl. Bank of Glens Falls, 146 A.D.2d 882, 885).   Under the particular circumstances of this case, “[t]o hold otherwise would place form before substance” (id. at 885;  see Barrett v. Kasco Constr.   Co., 56 N.Y.2d 830, affg 84 A.D.2d 555;  Ficorp, Ltd. v. Gourian, 263 A.D.2d 392, 392–393;  George Strokes Elec. & Plumbing v Dye, 240 A.D.2d 919, 920;  Dampskibsselskabet Torm A/S v. Thomas Paper Co., 26 A.D.2d 347, 352;  Scott v. Malik, 22 Misc.3d 1124[A], 2009 N.Y. Slip Op 50270[U];  cf.  Guiffrida v. Storico Dev., LLC, 60 AD3d 1286, 1287;  Edwards v. Siegel, Kelleher & Kahn, 26 AD3d 789, 790;  Dawson v. Riverbay Corp., 26 Misc.3d 143[A], 2010 N.Y. Slip Op 50389 [U] ).

Moreover, the Supreme Court properly determined that the plaintiff's failure to list the cause of action to recover damages for podiatric malpractice, which had accrued in August 2006, as an asset on the appropriate schedule submitted with her July 2, 2008, bankruptcy petition warrants dismissal of the complaint.   The aforementioned cause of action remained the property of the estate in bankruptcy, and the plaintiff lacks the authority to bring the present action (see 11 USC §§ 541[a][1], 554[c], [d];  Kane v National Union Fire Ins. Co., 535 F3d 380, 385;  Parker v. Wendy's Intl, Inc., 365 F3d 1268, 1272;  see also Dynamics Corp. of Am. v Marine Midland Bank–N.Y., 69 N.Y.2d 191, 196–198).

The plaintiff's remaining contentions are without merit.

RIVERA, J.P., FLORIO, DICKERSON and ENG, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court