Ordered that the appeal from the order dated February 17, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated August 8, 1988, made upon reargument; and it is further,
Ordered that the order dated August 8, 1988, is modified by deleting therefrom the third and fourth decretal paragraphs, which, in effect, conditionally granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint, and substituting therefor a provision unconditionally granting that branch of the defendants' cross motion which was for summary judgment dismissing the complaint; as so modified, the order dated August 8, 1988, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The record supports the finding by the Supreme Court that (1) "plaintiff filed a Chapter 7 petition in bankruptcy in the United States Bankruptcy Court for the Eastern District of New York on March 29, 1985, and that on July 28, 1986, the Trustee rendered his final report, requesting a hearing be held to pass upon that report", (2) "plaintiff's present claims accrued well before the close of the bankruptcy proceeding and plaintiff knew or should have known of all of the claims he now asserts during the period when the bankruptcy was pending", and (3) "plaintiff failed to list any of these claims in the schedule of property he filed with the Bankruptcy Court".
Under these circumstances, as the defendants correctly contend, the plaintiff lacked the legal capacity to sue, and that branch of the defendants' cross motion which was for summary judgment dismissing the complaint should have been granted unconditionally (see, Dynamics Corp. v. Marine Midland Bank, 69 N.Y.2d 191; DeLarco v. DeWitt, 136 A.D.2d 406, 409; Schepmoes v. Hilles, 122 A.D.2d 35; Bernstein v. Polo Fashions, 55 A.D.2d 530; cf., Quiros v Polow, 135 A.D.2d 697).
We have examined the plaintiff's remaining arguments and find them to be without merit (see, Sciascia v. Nevins, 130 A.D.2d 649; Lermit Plastics Co. v. Lauman Co., 40 A.D.2d 680). Mangano, P.J., Kunzeman, Rubin and Balletta, JJ., concur.