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AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS.

The Third Department determined plaintiff could not sue on invoices submitted for payment (which was refused) while plaintiff was in bankruptcy proceedings. Causes of action not listed in the bankruptcy proceedings cannot be sued upon after termination of the bankruptcy proceedings:

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“Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including a cause of action, vests in the bankruptcy estate” … . As such, a debtor’s failure to list a legal claim as an asset in its bankruptcy proceeding precludes the debtor from pursuing such claim on its own behalf inasmuch as the claim remains the property of the bankruptcy estate … . “The only property that may revest in the debtor in its individual capacity at the conclusion of the proceeding is property that was dealt with in the bankruptcy or abandoned” … . …

… [T]he claims asserted by plaintiff … accrued prior to the termination of the bankruptcy proceeding … . [T]he omission of these claims from the … schedule of assets in the bankruptcy proceeding precludes plaintiff from pursuing them on its own behalf because they were not “dealt with” in such proceeding … . Lightning Capital Holdings LLC v Erie Painting & Maintenance, Inc., 2017 NY Slip Op 02716, 3rd Dept 4-6-17

 

CONTRACT LAW (AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS)/BANKRUPTCY (AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS)

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Contract-Based Duty Owed to Non-Party Explained
DEFENDANT WAS REQUIRED TO WEAR AN ALCOHOL MONITORING DEVICE AS A CONDITION OF PROBATION BUT WAS UNABLE TO PAY FOR IT, THE PEOPLE DID NOT DEMONSTRATE DEFENDANT’S FAILURE TO PAY WAS WILLFUL, THEREFORE COUNTY COURT WAS OBLIGATED TO CONSIDER PUNISHMENT OTHER THAN INCARCERATION (THIRD DEPT).
PETITIONER LIVED IN NEW JERSEY AND COMMUTED TO NEW YORK CITY FOR WORK; ALTHOUGH PETITIONERS OWNED A VACATION HOME IN NORTHFIELD, NEW YORK, AND SPENT THREE WEEKS A YEAR THERE, THE NORTHFIELD HOME DID NOT MEET THE DEFINITION OF A PERMANENT PLACE OF ABODE FOR PURPOSES OF THE TAX LAW; THEREFORE THE TAX TRIBUNAL SHOULD NOT HAVE CONCLUDED PETITIONERS OWED NEW YORK STATE INCOME TAX (THIRD DEPT). ​
ALTHOUGH SOME OF THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN RAISED ON APPEAL, BECAUSE SOME OF THE INEFFECTIVE ASSISTANCE ISSUES COULD ONLY BE RAISED IN THE MOTION TO VACATE, ALL THE INEFFECTIVE ASSISTANCE ISSUES SHOULD HAVE BEEN CONSIDERED PURSUANT TO THE MOTION TO VACATE THE CONVICTION, HERE INEFFECTIVE ASSISTANCE WARRANTED A NEW TRIAL (THIRD DEPT).
JUDGE IMPOSED RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE VACATED.
PROSECUTOR’S SUMMATION SHIFTED THE BURDEN OF PROOF, CONVICTION REVERSED IN THE INTEREST OF JUSTICE.

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