August 6, 2012

Ocean Diagnostic Imaging, P.C. v Chubb Indem. Ins. Co. (2012 NY Slip Op 51485(U))

Headnote

The main issue in this case was whether Ocean Diagnostic Imaging, P.C., as the assignee of AIKELI BOLES, had the legal authority to bring the action to recover assigned first-party no-fault benefits, given that the sole officer, director, and shareholder of the plaintiff had died before the commencement of the action. The court considered relevant facts such as the death of Stephen A. Zinn, M.D., and the lack of evidence demonstrating that the commencement of the action was authorized by someone with the authority to do so. The court ultimately held that as the record did not demonstrate that the commencement of the action was authorized by someone with the authority to do so, the branch of defendant's motion seeking to dismiss the complaint was granted, and the order of the Civil Court was reversed.

Reported in New York Official Reports at Ocean Diagnostic Imaging, P.C. v Chubb Indem. Ins. Co. (2012 NY Slip Op 51485(U))

Ocean Diagnostic Imaging, P.C. v Chubb Indem. Ins. Co. (2012 NY Slip Op 51485(U)) [*1]

Ocean Diagnostic Imaging, P.C. v Chubb Indem. Ins. Co.

2012 NY Slip Op 51485(U) [36 Misc 3d 140(A)]

Decided on August 6, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 6, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-1589 K C.

Ocean Diagnostic Imaging, P.C. as Assignee of AIKELI BOLES, Respondent, —
against
Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 16, 2009. The order, insofar as appealed from as limited by the brief, implicitly denied the branch of defendant’s motion seeking to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the record establishes that Stephen A. Zinn, M.D., who was the sole officer, director and shareholder of plaintiff, died prior to the commencement of the action (see also Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). As the record does not demonstrate that the commencement of this action was authorized by someone with the authority to do so (see Business Corporation Law §§ 1507, 1511; see also Matter of Leonard, 199 Misc 138 [1950], affd 278 App Div 668 [1951]; Ocean Diagnostic Imaging, P.C., 15 Misc 3d 9; 38 NY Jur 2d, Decedents’ Estates §§ 53, 1510, 1513, 1521, 1532), the order of the Civil Court is reversed and the branch of defendant’s motion seeking to dismiss the complaint is granted (Deutsch v LoPresti, 272 AD2d 506 [2000]; McCormack v County of Westchester, 255 [*2]AD2d 296 [1998]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012