Mathus v Bouton's Bus. Machines, Inc.

Mathus v Bouton's Bus. Machs., Inc. 2010 NY Slip Op 08350 [78 AD3d 476] November 16, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Keith Mathus, Appellant,
v
Bouton's Business Machines, Inc., et al., Defendants, and Christopher Despirito et al., Respondents.

—[*1] Keith J. Mathus, appellant pro se.

Eckert Seamans Cherin & Mellott LLC, White Plains (Thomas M. Smith of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 9, 2009, which denied plaintiff's motion for a default judgment and granted defendant Patrick Despirito's cross motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's 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 [2009], lv dismissed and denied 12 NY3d 802 [2009], citing, inter alia, Whelan v Longo, 7 NY3d 821 [2006]). We have considered plaintiff's other arguments and find them unavailing. Concur—Gonzalez, P.J., Mazzarelli, Andrias, Nardelli and Richter, JJ. [Prior Case History: 2009 NY Slip Op 30529(U).]