As Schoolman v. NcAuliffe 2020 NY Slip Op 34228(U) December 21, 2020 Supreme Court, Suffolk County Docket Number: 4311/2019 Judge: Sanford Neil Berland demonstrates, bankruptcy can serve as a sheering tool. Enter into bankruptcy and sone/all of your possessions are gone.
“”‘Upon the filing of a voluntary bankruptcy petition. all property which a debtor owns.including a cause of action, vests in the bankruptcy estate,”‘(Burbacki v. Abrams, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 172 AD3d 1300, l 300. 99 NYS3d 671 [2d Dept 2019), quoting Keegan v. Moriarty-Morris, 153 AD3d 683, 684 (2d Dept 20 17), citing
11 USC§ 541 [a][IJ; In re Oshome, 2013 WL 113177662, *2, 2013 US Dist LEXIS 190402, *5-6 {SONY 2013)). Therefore, a plaintiff may not maintain a legal malpractice cause of action in his or her individual capacity relating to a bankruptcy. The right to sue is only exercisable by
the trustee in bankruptcy. whether the claim asserted in the complaint accrued prior to the filing of the bankruptcy petition. or post-petition (see 11 USC § 541 [a][ I): Burbacki v. Abrams, Fensterman, Eiseman, Formato, Ferrara & Wolf, LLP, supra 172 AD3d at 1300, citing Williams v. Stein, 6 AD3d 197, 775 NYS2d 255 (1st Dept 2004). /n re Osborne, 2013 WL 11317662, *2-3. 2013 US Dist LEXIS I 90402. *7-8. Jn re Alvarez, 224 F3d 1273. 1275-1278 [11th Cir 2000)). Therefore, to the extent that plaintiff asserts claims for legal malpractice in connection with defendant’s representation of the three companies, plaintiff lacks the capacity to sue as a matter of bankruptcy law.”