| Wright v Meyers & Spencer, LLP |
| 2007 NY Slip Op 10143 [46 AD3d 805] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Lewis Z. Wright, Appellant, v Meyers & Spencer, LLP, etal., Respondents. |
—[*1] Kaufman Borgeest & Ryan LLP, New York, N.Y. (A. Michael Furman and Kristopher M.Dennis of counsel), for respondents.
In an action to recover damages for legal malpractice and breach of contract, the plaintiffappeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered March22, 2006, which granted the defendants' motion pursuant to CPLR 3211 to dismiss the complaint.
Ordered that the order is affirmed, with costs.
The evidentiary facts, as pleaded in the complaint and amplified in the plaintiff's affidavit inopposition to the defendants' motion to dismiss, establish that any legal malpractice cause ofaction necessarily accrued prior to the filing of the plaintiff's bankruptcy petition (see McCoyv Feinman, 99 NY2d 295, 301 [2002]; Iser v Kerrigan, 37 AD3d 662, 663 [2007]). Therefore, uponcommencement of the plaintiff's bankruptcy proceeding, the malpractice cause of action became"property of the estate" pursuant to the Bankruptcy Code (11 USC § 541 [a] [1], [7]; Inre Strada Design Assoc., Inc., 326 BR 229, 235-237 [2005]). Accordingly, this action maynot be maintained by the plaintiff in his individual capacity, and the complaint should have beendismissed pursuant to CPLR 3211 (a) (3) for lack of legal capacity to sue (see Williams v Stein, 6 AD3d 197,198 [2004]).
Contrary to the plaintiff's contention, the fact that the Supreme Court dismissed the [*2]complaint on other grounds and treated the capacity issue as"academic," does not preclude our review of the matter (see e.g. Maguire v Beyer, 31 AD3d 621, 622 [2006]; Matter ofBroda v Monahan, 309 AD2d 959, 961 [2003]; Re/Max Homes & Estates v Leist,308 AD2d 439, 440 [2003]) in the interest of judicial economy, since the issue was clearly raisedby the defendants in their motion and was fully briefed by the parties.
The plaintiff's cause of action alleging breach of contract, which was duplicative of the legalmalpractice claim and arose from the same facts, was also properly dismissed (see Shivers v Siegel, 11 AD3d 447[2004]).
In light of our determination, we do not reach the parties' remaining contentions. Spolzino,J.P., Fisher, Covello and McCarthy, JJ., concur.