Emergency Beacon Corp. v. Polish

71 A.D.2d 995, 420 N.Y.S.2d 286, 1979 N.Y. App. Div. LEXIS 13318

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 1979
• Status: Published

Opinion

In an action, inter alia, to recover damages for legal malpractice and for conspiracy to defraud, defendant Sherman and Citron appeals from so much of an order of the Supreme Court, Westchester County, dated May 5, 1978, as denied its motion to dismiss pursuant to CPLR 3211 (subd [a], par 3), on the ground that plaintiff Emergency Beacon Corporation lacked legal capacity to sue. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and action on behalf of the plaintiff corporation is dismissed. Before it commenced this action, the plaintiff corporation had been adjudicated a bankrupt and a trustee had been appointed for it. At that point, the right to prosecute all causes of action that it might previously have prosecuted passed to the trustee (see US Code, tit 11, § 110, subd [a], pars [5], [6]), and the corporation lost the capacity to sue on its own behalf (see Harrigan v Bergdoll, 270 US 560; Chraime v Cattan, 16 Mise 2d 531, affd 9 AD2d 870). Hopkins, J. P., Titone, Mangano and Gulotta, JJ., concur.