NATIONWIDE ASSOCIATES INC v. EPSTEIN

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Supreme Court, Appellate Division, Second Department, New York.

NATIONWIDE ASSOCIATES, INC., appellant, et al., plaintiff, v. Jules A. EPSTEIN, et al., respondents, et al., defendant.

Decided: December 27, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, FRED T. SANTUCCI, and ROBERT A. SPOLZINO, JJ. Jeffrey Levitt, Amityville, N.Y., for appellant. Jules A. Epstein, P.C., Garden City, N.Y. (Jules A. Epstein pro se of counsel), respondent pro se.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff Nationwide Associates, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated June 16, 2004, as granted that branch of the motion of the defendants Jules A. Epstein and Jules A. Epstein, P.C., which was pursuant to CPLR 3211(a)(4) and (7) to dismiss the complaint insofar as asserted against them by the plaintiff Nationwide Associates, Inc.

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

The failure of the plaintiff Nationwide Associates, Inc. (hereinafter Nationwide), to disclose any legal malpractice causes of action against the defendants in a prior bankruptcy proceeding deprived Nationwide of its legal capacity to sue on those causes of action (see Dynamics Corp. of Am. v. Marine Midland Bank-New York, 69 N.Y.2d 191, 513 N.Y.S.2d 91, 505 N.E.2d 601;  Santori v. Met Life, 11 A.D.3d 597, 599, 784 N.Y.S.2d 117;  123 Cutting Co. v. Topcove Assoc., 2 A.D.3d 606, 607, 770 N.Y.S.2d 365;  Martinez v. Desai, 273 A.D.2d 447, 447-448, 710 N.Y.S.2d 372;  Goldstein v. St. John's Episcopal Hosp., 267 A.D.2d 426, 427, 701 N.Y.S.2d 111;  Quiros v. Polow, 135 A.D.2d 697, 522 N.Y.S.2d 596).   The fact that Nationwide's bankruptcy proceeding was dismissed rather than discharged does not alter the effect of Nationwide's failure to disclose the claim it now seeks to assert here (see Kunica v. St. Jean Fin., Inc., 233 B.R. 46;  Matter of Best v. MetLife Auto & Home Ins. Co., 7 Misc.3d 242, 793 N.Y.S.2d 682).   Moreover, unlike the situation presented in B.N. Realty Assoc. v. Lichtenstein, 21 A.D.3d 793, 801 N.Y.S.2d 271, where the petitioner in bankruptcy had disclosed the pendency of the action in which his counterclaims were asserted, there is no evidence in this record from which we can conclude that the other parties to Nationwide's bankruptcy proceeding would have been able, with some investigation, to discover the claims that Nationwide failed to disclose.

Nationwide's remaining contentions are without merit.

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