In Rivera v. Markowitz, 71 AD3d 449, 450, 897 N.Y.S.2d 50 [1st Dept 2010], the First Department modified, on the law, the trial court's order that dismissed the plaintiff's complaint with prejudice, "to the extent of dismissing the complaint without prejudice so that it may be commenced by the trustee pursuant to CPLR §205 (a)." (71 AD3d at 450 ).
The appellate court also noted that because plaintiff's failure to list the claim as an asset in the bankruptcy petition deprived him of the capacity to sue, the trustee could not simply be substituted for plaintiff in light of such defect. (Id.).