Plaintiff commenced this action, along with a related action,^[FN1] to recover real estate broker commissions allegedly due and owing to him pursuant to the contract with defendants.

On March 22, 2000, defendant Sunnymeade Leasing L.L.C. [hereinafter "Sunnymeade"] entered into a contract to purchase certain real property located at 4255 Amboy Road, Staten Island New York. Defendant Sunnymeade obtained rights to develop a shopping center on the land and, pursuant to the contract, listed plaintiff, R. Della Realty Corporation and Richard Delli Paoli ^[FN2] [hereinafter collectively "R. Della"], as the sole real estate broker. Thereafter, on or about March 30, 2000, Sunnymeade, through their principal, co-defendant Robert Arminante, contracted with the plaintiff to be the sole leasing agent for the stores in the shopping center. The parties structured the lease agreement as follows:

1-Richard Delli Paoli is hereby granted the right to be the Exclusive Rental Agent on the Shopping Center to be built by LAND LESSEE on the above property.

a-Richard Delli Paoli shall receive a fee equal to one month's rent rent[sic] for each Non-Major tenant, and a fee equal to 3 months rent (paid over an 18 month period) for each Major Tenant signed up.

b-Richard Delli Paoli shall look first to the Tenants for payment of rental fees

2-Richard Delli Paoli shall be granted an Exclusive Right on the sale of the Lessees Leasehold Interest in the above property(approved, improved or as is').

a-Richard Delli Paoli shall be paid a fee of 3% of the sales price of the Leasehold of [*2]Sunnymeade Leasing L.L.C. as a commission.

3-Richard Delli Paoli shall be granted a 5% ownership interest in the Leasehold Interest herein by Sunnymeade Leasing L.L.C. Said ownership interest is separate and apart from any fees earned by Richard Delli Paoli. Richard Delli Paoli will not be required to make any monetary contribution toward or for this ownership interest

Plaintiffs do not dispute that the complaint's fourth and fifth causes of action regarding the 5% ownership interest, which plaintiff concedes was not listed as an asset in the bankruptcy petition, are inappropriate causes of action and are dismissed for lack of standing. However, at present, plaintiff is seeking to collect monies allegedly due and owing to him pursuant to the aforementioned contract, including rental income as plaintiff contends that the defendants only recently began to develop the shopping center on the property.

Defendant now moves to dismiss the complaint, pursuant to CPLR § 3211 (a)(7), contending that plaintiff failed to list this potential claim, along with his ownership in R. Della Realty, and rental income from Sunnymeade, as an asset on his multiple bankruptcy petitions and as such lacks standing to pursue the claim. It is undisputed that on or about March 5, 2003, plaintiff Delli Paoli, brought a Chapter 7 bankruptcy petition in the Eastern District of New York, without listing this claim or R. Della Realty as an asset. The initial bankruptcy petition was filed on March 17, 2003 and discharged on July 15, 2003. Plaintiff made an application to reopen this bankruptcy petition on May 20, 2004, and the reopened petition was discharged on December 28, 2007.

With respect to defendant's motion to dismiss based upon documentary evidence, pursuant to CPLR § 3211 (a)(1), "a party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence" (CPLR § 3211 [a][1]). Further, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" and "resolves all factual issues" (City Line Rent a Car, Inc. v. Alfess Realty, 33 AD3d 835, 835 [2d Dept. 2006][finding that where issues are not conclusively resolved by the evidence the matter should not be dismissed]; Kupersmith v. Winged Foot Golf Club, 38 AD3d 847, 848 [2d Dept. 2007]; New York Community Bank v. Snug Harbor Square Venture, 299 AD2d 329, 329-30 [2d Dept. 2002]).

Pursuant to the United States Bankruptcy Code, when a debtor declares bankruptcy, all legal and equitable interests in property must be declared part of the estate (USC § 541[a][1]). "United States Bankruptcy Code broadly defines property to include causes of action which existed at the time of the commencement of the proceeding" (11 USC § 541[a][1]; Santori v. Met-Life, 11 AD3d 597, 599 [2d Dept., 2004]; Martinez v. Desai, 273 AD2d 447, 447-448 [2d Dept., 2000][holding that "[c]auses of action which accrue prior to the close of the bankruptcy proceedings, and which were neither abandoned nor administered in the case, nor the subject of a court order, remain property of the bankruptcy estate and the plaintiff loses the capacity to sue on his own behalf with respect thereto"]). Bankruptcy Code mandates that debtors schedule any causes of action so the bankruptcy trustee "can determine whether the claims should be abandoned, or administered by the bankruptcy court for the benefit of the creditors" (Santori v. [*3]Met-Life, 11 AD3d at 599; Mehlenbacher v. Swartout, 289 AD2d 651 [3d Dept., 2001][finding that causes of action can only revert back to the debtor if they were "dealt with" by the bankruptcy trustee, which necessitates it being listed as an asset]). The failure of the debtor to list any cause of action which they knew, or should have know about, in their bankruptcy petition results in the debtors preclusion from pursuing the claim on his or her own behalf (Santori v. Met-Life, 11 AD3d at 599; Martinez v. Desai, 273 AD2d 447, 447-448 [2d Dept., 2000]).

Here, the defendant has established, through documentary evidence that the plaintiff lacks the capacity to sue on this cause of action because he failed to list his exclusive rights/interests in Sunnymeade and R. Della Realty as an asset when he filed his initial bankruptcy petition on March 5, 2003 (Santori v. Met-Life, 11 AD3d at 599; Mehlenbacher v. Swartout, 289 AD2d 651 [3d Dept., 2001][holding that "all property which a debtor owns or subsequently acquires . . . vests in the bankruptcy estate"]; Martinez v. Desai, 273 AD2d 447, 447-448 [2d Dept., 2000]). Specifically, the defendant has established that the plaintiff failed to list property which the debtor knew or should have known about, along with property that was known to be subsequently acquired, i.e., the rights to rental income of the stores, and as such, the plaintiff lacks the standing to pursue these claims. In opposition, the plaintiff has failed to offer evidence to rebut defendant's prima facie showing that none of the following was listed as an asset in his bankruptcy petition; (1) this cause of action, (2) his ownership in R. Della Realty and (3) his known right to rental income and ownership interest in Sunnymeade's shopping center and as such he lacks the capacity to bring suit and defendant's motion to dismiss the complaint, in its entirety, is granted.

Accordingly, it is

ORDERED that defendant's motion to dismiss the complaint is hereby granted, and it is further

ORDERED that the complaint is dismissed in its entirety, and it is further

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: July 18,2008E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court