Guzman v. Promesa Admin. Servs. Org., Inc.

2018 NY Slip Op 6145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 20, 2018
• Docket: 308820/08 7054 7053
• Status: Published

Opinion

Guzman v Promesa Admin. Servs. Org., Inc. (2018 NY Slip Op 06145)

Guzman v Promesa Admin. Servs. Org., Inc.

2018 NY Slip Op 06145

Decided on September 20, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 20, 2018
Renwick, J.P., Richter, Tom, Gesmer, JJ.

308820/08 7054 7053

[*1]Damary Guzman, Plaintiff-Respondent,

v

Promesa Administrative Services Organization, Inc., et al., Defendants-Appellants.

Lewis, Brisbois, Bisgaard & Smith LLP, New York (Meredith Drucker Nolen of counsel), for appellants.

Macaluso & Fafinski, P.C., Bronx (Donna A. Fafinski of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr. J.), entered on or about November 9, 2017, which denied defendants Promesa Administrative Services Organization, Inc. and Promesa Systems Inc.'s motion for leave to serve a second amended answer and for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered on or about September 18, 2017, unanimously dismissed, without costs, as academic.

The motion court improvidently denied defendants' motion to amend their answer and dismiss the complaint unless plaintiff amended her Chapter 13 Bankruptcy Petition within 30 days of service of the order to include this action in her schedule of assets, because plaintiff took an inconsistent position during the bankruptcy proceeding by claiming that she did not have any other legal claims than those listed on her schedule of assets and liabilities which was adopted by the Bankruptcy Court when it confirmed the plan (see Kleinplatz v Nathan L. Dembin & Assoc., P.C., 148 AD3d 431, 431 [1st Dept 2017]; Horvath v Gumley Haft Kleier Inc., 148 AD3d 437 [1st Dept 2017]; Gray v City of New York, 58 AD3d 448, 449 [1st Dept 2009], lv dismissed in part, denied in part 12 NY3d 802 [2009]).

Since the complaint must be dismissed, the appeal from the September 18, 2017 order denying defendants' motion for summary judgment has been rendered academic (see Encore Coll. Bookstores, Inc. v City Univ. of N.Y., 75 AD3d 442, 443 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 20, 2018

CLERK