Kenney v. National Fuel Gas Distribution Corp.

Appeal from an order of the Supreme Court, Erie County (David J. Mahoney, J.), entered January 31, 2003. The order denied defendants’ motion to dismiss the complaint in a personal injury action. It is hereby ordered that the order so appealed from be and the same hereby is affirmed with costs. Memorandum: Supreme Court properly denied defendants’ motion to dismiss the complaint in this personal injury action for lack of capacity to sue. In support of the motion, defendants contended that plaintiff Margaret Kenney failed to disclose the action in her Chapter 13 bankruptcy schedule of assets, and that the action belonged to the bankruptcy estate. “[A] Chapter 13 debtor retains standing to litigate causes of action that, outside of bankruptcy, would belong to the debtor” (In re Dawnwood Props./78, 209 F3d 114, 116 [2000]; see Olick v Parker & Parsley Petroleum Co., 145 F3d 513, 515-516 [1998]; Murray v Board of Educ. of City of N.Y., 248 BR 484, 486 [2000]; see also Matter of Miller [Berti], 1 AD3d 885, 886 [2003]). Plaintiffs therefore “possessed the requisite capacity to maintain this . . . action” (Giovinco v Goldman, 276 AD2d 469, 469 [2000]). Contrary to defendants’ contention, “the doctrine of judicial estoppel is not applicable under the circumstances of this case” (Miller, 1 AD3d at 885). All concur, Martoche, J, not participating. Present—Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.