Basri v. Metropolitan Life Insurance , 760 N.Y.S.2d 654 ( 2003 )

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Orange County (Slobod, J.), dated June 25, 2002, as granted the defendant’s motion for summary judgment dismissing the complaint, and (2) an order of the same court dated October 17, 2002, as, upon granting his motion for leave to renew and reargue the motion for summary judgment, adhered to the original determination.

Ordered that the appeal from the order dated June 25, 2002, is dismissed, as that order was superseded by the order dated October 17, 2002, made upon renewal and reargument; and it is further,

Ordered that the order dated October 17, 2002 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The plaintiff did not properly schedule his claim against the defendant as an asset in his prior Chapter 11 bankruptcy proceeding that concluded in 1996 (see Donaldson, Lufkin & Jenrette Secs. Corp. v Mathiasen, 207 AD2d 280, 282 [1994]). He also failed to specifically provide that he was retaining the right to sue on that claim after his plan of reorganization was confirmed (see Harstad v First Am. Bank, 39 F3d 898 [1994]; In re Mako, Inc., 985 F2d 1052 [1993]; see also 11 USC § 1123 [b] [3] [B]). Under these circumstances, the Supreme Court correctly concluded that he lacked the capacity to prosecute this action (see Coogan v Ed’s Bargain Buggy Corp., 279 AD2d 445 [2001]; Hart Sys. v Arvee Sys., 244 AD2d 527 [1997]; Cafferty v Thompson, 223 AD2d 99 [1996]). Santucci, J.P., Friedmann, Mastro and Rivera, JJ., concur.