Opinion
2016–05844 Index No. 509725/15
05-29-2019
Ella BURBACKI, Appellant, v. ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA & WOLF, LLP, et al., Respondents.
Burbacki Law Group, Brooklyn, N.Y. (Zarina Burbacki of counsel), for appellant. Law Offices of Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig and Peter Chatzinoff of counsel), for respondents.
Burbacki Law Group, Brooklyn, N.Y. (Zarina Burbacki of counsel), for appellant.
Law Offices of Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig and Peter Chatzinoff of counsel), for respondents.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated April 8, 2016. The order, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for legal malpractice.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In August 2015, the plaintiff commenced this action against the law firm Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, and three attorneys at the law firm (hereinafter collectively the defendants), inter alia, to recover damages for legal malpractice. The plaintiff alleged, among other things, that based upon the defendants' inaccurate advice and misrepresentations, she filed for bankruptcy protection under chapter 7 of the United States Bankruptcy Code on March 20, 2012. The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for legal malpractice on the ground, among other things, that the plaintiff lacked the legal capacity to sue. The Supreme Court granted that branch of the motion, and the plaintiff appeals.
The commencement of a bankruptcy proceeding creates an "estate" that is comprised of "all legal or equitable interests of the debtor in property as of the commencement of the case" ( 11 USC § 541 [a][1]; see Osborne v. Tulis [In re Osborne], 2013 WL 11317662, *2, 2013 U.S. Dist LEXIS 190402, *5 [S.D.N.Y., No. 13 CV 2803(VB) ] ). "Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including a cause of action, vests in the bankruptcy estate" ( Keegan v. Moriarty–Morris, 153 A.D.3d 683, 684, 59 N.Y.S.3d 779 [internal quotation marks omitted]; see 11 USC § 541 [a][1]; Osborne v. Tulis [In re Osborne], 2013 WL 11317662, *2–3, 2013 U.S. Dist LEXIS 190402, *5–6 ). "Although federal law determines when a debtor's interest in property is property of the bankruptcy estate, property interests are created and defined by state law" ( In re Ross, 548 B.R. 632, 637 [E.D.N.Y.], affd sub nom. Mendelsohn v. Ross, 251 F.Supp.3d 518 [E.D.N.Y.] ; see Broadwall Am., Inc. v. Bram Will–El LLC, 32 A.D.3d 748, 750, 821 N.Y.S.2d 190 ). Causes of action that accrue under state law prior to the filing of a bankruptcy petition, as well as those that accrue as a result of the filing, are property of the estate (see Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A. v Alvarez [In re Alvarez], 224 F.3d 1273, 1277–1278 [11th Cir.] ; Winick & Rich, P.C. v. Strada Design Assocs. [In re Strada Design Assocs.], 326 B.R. 229, 235 [S.D.N.Y.] ). "[A] debtor's failure to list a legal claim as an asset in his or her bankruptcy proceeding causes the claim to remain the property of the bankruptcy estate and precludes the debtor from pursuing the claim on his or her own behalf" ( 123 Cutting Co. v. Topcove Assoc., 2 A.D.3d 606, 607, 770 N.Y.S.2d 365 ; see 11 USC § 554 ; Ladson v. Fessel, 85 A.D.3d 1128, 1129, 926 N.Y.S.2d 300 ; see also Dynamics Corp. of Am. v Marine Midland Bank–N.Y., 69 N.Y.2d 191, 195–196, 513 N.Y.S.2d 91, 505 N.E.2d 601 ).
Here, the plaintiff's legal malpractice cause of action accrued on March 20, 2012, when she, acting on the defendants' advice, filed the bankruptcy petition (see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 956, 15 N.Y.S.3d 840 ; Landow v. Snow Becker Krauss, P.C., 111 A.D.3d 795, 796, 975 N.Y.S.2d 119 ). Since the plaintiff had an interest in the legal malpractice cause of action "as of the commencement of the case" ( 11 USC § 541 [a][1] ), we agree with the Supreme Court's conclusion that the cause of action was property of the bankruptcy estate and that the plaintiff lacked the legal capacity to sue on that cause of action (see Williams v. Stein, 6 A.D.3d 197, 198, 775 N.Y.S.2d 255 ; Osborne v. Tulis [In re Osborne], 2013 WL 11317662, *3, 2013 U.S. Dist LEXIS 190402, *7–8 ; see also Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A. v Alvarez [In re Alvarez], 224 F.3d at 1275–1278 ).
Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was to dismiss the cause of action to recover damages for legal malpractice.
DILLON, J.P., ROMAN, MILLER and DUFFY, JJ., concur.