Opinion
No. 2008-08436.
September 29, 2009.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated July 18, 2008, as, in effect, granted that branch of the defendants' motion which was to dismiss the first cause of action insofar as asserted by the plaintiff R. Della Realty Corp. pursuant to CPLR 3211 (a) (3).
Stephen Einstein Associates, P.C., New York, N.Y., for appellants.
John Z. Marangos, Staten Island, N.Y. (Denise Marangos of counsel), for respondents.
Before: Skelos, J.P., Covello, Leventhal and Roman, JJ., concur.
Ordered that the appeal by the plaintiff Richard Delli Paoli is dismissed, as he is not aggrieved by the portion of the order appealed from ( see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from by the plaintiff R. Della Realty Corp., on the law, with costs, and that branch of the defendants' motion which was to dismiss the first cause of action insofar as asserted by the plaintiff R. Della Realty Corp. pursuant to CPLR 3211 (a) (3) is denied.
On their motion, inter alia, to dismiss the complaint based on lack of capacity to sue ( see CPLR 3211 [a] [3]), the defendants established that, several years before the instant action was commenced, the plaintiff Richard Delli Paoli commenced a bankruptcy proceeding, and was granted a discharge in bankruptcy. However, the plaintiff R. Della Realty Corp. was not a petitioner in that, or any other, bankruptcy proceeding. Under these circumstances, the Supreme Court should have denied that branch of the defendants' motion which was to dismiss the first cause of action insofar as asserted by R. Della Realty Corp. pursuant to CPLR 3211 (a) (3) ( see R. Della Realty Corp. v Block 6222 Contr. Corp., 65 AD3d 1323 [decided herewith]; cf. Whelan v Longo, 7 NY3d 821, 822; Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 196-197; Quiros v Polow, 135 AD2d 697, 699-700).
[ See 20 Misc 3d 1121(A), 2008 NY Slip Op 51496(U).]