Justice Thomas Feinman
Third-party defendant Airflex moved for leave to amend its answer to include the defense of lack of capacity to sue and dismissal of Grippe’s complaint alleging judicial estoppel. Grippe sued to recover for personal injuries allegedly suffered at a job site in 2008. He filed for bankruptcy in 2009, but failed to list this claim in the filing. Bankruptcy court discharged the trustee and closed the filing in 2010, and Grippe filed this case three months later. The court stated a plaintiff who fails to list a claim in a schedule of assets filed with the bankruptcy court lacked the capacity to sue as it precluded the debtor from pursuing the claim on his own behalf because it remained the property of the bankruptcy estate. It ruled Grippe was judicially estopped from asserting his claim as he failed to disclose it in his schedule of asserts in the bankruptcy proceeding, and such failure precluded him from pursuing the claim on his own behalf. The court noted Grippe’s self-proclaimed “innocent” failure excuse was immaterial, noting even the advice of counsel was not generally a defense to the application of judicial estoppel. Also, it stated substitution was not available to cure the deficiency, granting Airflex’s motion and dismissing the complaint.