
    Keith Mathus, Appellant, v Bouton’s Business Machines, Inc., et al., Defendants, and Christopher Despirito et al., Respondents.
    [910 NYS2d 644]
   Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 9, 2009, which denied plaintiffs motion for a default judgment and granted defendant Patrick Despirito’s cross motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiffs failure to include the claims herein in his bankruptcy petition, when he knew or should have known of them at that time, deprives him of the legal capacity to sue herein (see Gray v City of New York, 58 AD3d 448 [2009], lv dismissed and denied 12 NY3d 802 [2009], citing, inter alia, Whelan v Longo, 7 NY3d 821 [2006]). We have considered plaintiffs other arguments and find them unavailing. Concur — Gonzalez, P.J., Mazzarelli, Andrias, Nardelli and Richter, JJ.  