Opinion
No. 3613.
November 16, 2010.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 9, 2009, which denied plaintiffs motion for a default judgment and granted defendant Patrick Despirito's cross motion to dismiss the complaint, unanimously affirmed, without costs.
Keith J. Mathus, appellant pro se.
Eckert Seamans Cherin Mellott LLC, White Plains (Thomas M. Smith of counsel), for respondents.
Before: Concur — Gonzalez, J.P., Mazzarelli, Andrias, Nardelli and Richter, JJ.
Plaintiffs failure to include the claims herein in his bankruptcy petition, when he knew or should have known of them at that time, deprives him of the legal capacity to sue herein ( see Gray v City of New York, 58 AD3d 448, lv dismissed and denied 12 NY3d 802, citing, inter alia, Whelan v Longo, 7 NY3d 821). We have considered plaintiffs other arguments and find them unavailing.
[Prior Case History: 2009 NY Slip Op 30529(U).]