SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 18, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by its biomechanical engineer, which affidavit was in admissible form, as it was accompanied by a certificate of conformity pursuant to Real Property Law § 299-a, and was therefore in compliance with CPLR 2309 (c) (cf. Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The engineer concluded that the injuries of plaintiff’s assignors could not have arisen out of the accident in question, after he reviewed, among other things, the photographs of the vehicle involved in the accident, the medical records of plaintiff and other providers regarding their treatment of the assignors, and copies of the transcripts of plaintiff’s assignors’ testimony at their examinations under oath, all of which defendant attached to its moving papers.

As defendant established its entitlement to judgment as a matter of law by submitting proof in admissible form showing the lack of a causal connection between the accident and the injuries claimed by plaintiff’s assignors, the burden shifted to plaintiff to rebut defendant’s showing. Plaintiff, in its opposition papers, failed to do so. Defendant’s motion for summary judgment dismissing the complaint should therefore have been granted.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Golia, J.P., and Weston, J., concur. [*2]

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order in the following memorandum:

I respectfully dissent and vote to affirm the order.

Contrary to the finding of the majority, the affidavit of defendant’s biomechanical engineer was insufficient to establish as a matter of law that the injuries claimed by plaintiff’s assignors could not have arisen from the accident. Instead, the affidavit merely demonstrated a “founded belief” that the alleged injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly denied.
Decision Date: February 21, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 10, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order. At issue on this appeal is whether defendant’s failure to assert a defense pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]) precludes it from seeking discovery related to that defense. We conclude that, based on the record before us, defendant made sufficient allegations of fraudulent incorporation to warrant disclosure.

It is well settled that a party is entitled to full disclosure of all matter that is “material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]). What is “material and necessary” is left to the sound discretion of the court and includes “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Young v Tierney, 271 AD2d 603 [2000]). Where, as here, an insurer requests discovery concerning a Mallela defense, the request should be granted as long as there are sufficient allegations supporting such a defense (see e.g. Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]). A Mallela defense is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial (see Midwood Acupuncture, P.C. v State Farm [*2]Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]).

Here, although defendant never moved to amend its answer to assert a defense based on fraudulent incorporation, it did submit an affidavit containing sufficient allegations of fraudulent incorporation. Defendant included an affidavit from its Senior Special Investigator, who set forth, in detail, plaintiff’s close connection with another medical provider whose owner was convicted of, among other things, fraud and falsifying business records. Since defendant made adequate allegations of fraudulent incorporation, the Civil Court did not abuse its discretion in granting those branches of defendant’s motion seeking to compel disclosure on that issue, and in denying plaintiff’s cross motion for a protective order (see Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U]).

Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., and Weston, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur for the reasons stated in my concurrence in Lexington Acupuncture, P.C. v General Assur. Co. (___ Misc 3d ___, 2012 NY Slip Op ______ [Appeal No. 2010-165 K C], decided herewith). While there exist certain differing factual elements in these two matters, those facts have no significance here, and consequently play no part in the legal issues in controversy.

Additionally, the failure of the defendant in this matter to assert every affirmative defense asserted in Lexington Acupuncture, P.C. is of no consequence. The inclusion of any one satisfactory affirmative defense would be sufficient. Furthermore, and just as importantly, as stated in my Lexington Acupuncture, P.C. concurrence, a Mallela claim is non-precludable and can be raised at any time (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).
Decision Date: February 21, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 17, 2009. The order, upon an amended cross motion by defendant for, among other things, leave to amend its answer and to direct plaintiff “to disclose management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records, or in the alternative, granting . . . leave to serve supplemental demands for same,” granted defendant leave to amend its answer and directed that “the plaintiff shall provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer.”

ORDERED that the order is modified by striking so much of the order as directs that “the plaintiff shall provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer” and by providing that the branch of defendant’s cross motion seeking to direct disclosure is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, by an amended cross motion, defendant cross-moved for, among other things, leave to amend its answer to assert the additional affirmative defense to the effect that plaintiff was not entitled to receive no-fault benefits because it failed to comply with applicable state or local licensing laws. Defendant’s cross motion also sought an order, pursuant to CPLR 3104, directing plaintiff “to disclose management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records, or in the alternative, granting . . . leave to serve supplemental demands for same.” By order dated November 18, 2009, the Civil Court denied plaintiff’s motion. By order entered December 17, 2009, the Civil Court granted the branch of defendant’s amended cross motion seeking to amend the answer and directed plaintiff to “provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer.”

Leave to amend pleadings should be freely granted absent prejudice or surprise resulting from the delay (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220, 225 [2008]; see also Worthen-Caldwell v Special Touch Home Care Servs., Inc., 78 AD3d 822 [2010]). As plaintiff was neither prejudiced nor surprised by defendant’s delay in asserting the foregoing affirmative [*2]defense, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s amended cross motion seeking leave to amend its answer (see e.g. New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52217[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

A review of the record indicates that defendant’s initial discovery demands had not requested any “management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records,” and were merely comprised of a “Demand for Disclosure of Witness(es),” a “Notice Pursuant to CPLR 3101” for, among other things, the identities of expert witnesses intended to be called at trial, and a “Declination of Service by Electronic Means.” Since defendant had not served any supplemental discovery demands upon plaintiff prior to making its cross motion, and did not submit any proposed supplemental discovery demands with its cross motion, so much of the order as states that “the plaintiff shall provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer” is stricken.

We note that, contrary to plaintiff’s contention, there is no requirement that a CPLR 321 change or withdrawal of attorney form be notarized. We further note that nothing in our decision herein is intended to preclude defendant from serving supplemental discovery demands.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: February 21, 2012

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered August 31, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered August 31, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, a chiropractor’s sworn peer review report, setting forth a factual basis and medical rationale for his stated conclusion that the diagnostic testing giving rise to plaintiff’s no-fault claim lacked medical necessity (see generally CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In opposition, plaintiff failed to raise a triable issue of fact. The medical affidavit submitted by plaintiff contained no indication that the generic conclusions reached by the affiant — a physician whose field of practice is unspecified — were based upon either a medical examination of plaintiff or a review of plaintiff’s medical records. Further, plaintiff’s affiant did not refer to, let alone rebut, the contrary findings made by defendant’s peer reviewer (see CPT Med. Servs. P.C., 18 Misc 3d at 88). Nor is the separate, unsigned medical report submitted by plaintiff properly considered (see CPLR 2106; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 16, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 23, 2010. The order, insofar as appealed from, in effect, denied defendant’s cross motion for summary judgment dismissing the complaint and found that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by striking the provision thereof finding that plaintiff had established its prima facie case, and by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s claims for dates of service from October 30, 2007 through January 30, 2008 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding for all purposes in the action, that plaintiff had established its prima facie case. Defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint and found, implicitly pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case. [*2]

We note initially that plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit of the president of its third-party biller was insufficient to establish that the documents annexed to plaintiff’s motion papers were admissible pursuant to CPLR 4518 (a) (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff was not entitled to a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case.

In support of defendant’s cross motion for summary judgment, defendant submitted, among other things, an affidavit of its claims examiner, which established that the claim denial forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant, however, did not proffer sufficient evidence to warrant the dismissal of plaintiff’s claim for the initial consultation on August 29, 2007 (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), nor did it establish as a matter of law that the amounts sought by plaintiff for acupuncture treatment rendered from August 30, 2007 through October 25, 2007 were in excess of the amounts permitted by the workers’ compensation fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; see also Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51175[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied the branch of defendant’s cross motion seeking the dismissal of these claims.

In support of its cross motion, defendant submitted a sworn report of the licensed acupuncurist/chiropractor who had conducted an independent medical examination of plaintiff’s assignor on October 16, 2007. The report set forth a factual basis and medical rationale for the examiner’s determination that there was no need for further acupuncture treatment. Since defendant’s showing that the services rendered from October 30, 2007 through January 30, 2008 were not medically necessary was unrebutted by plaintiff, defendant was entitled to summary judgment dismissing plaintiff’s claims for these dates of service (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order of the Civil Court is modified by striking the provision thereof finding that plaintiff established a prima facie case and by providing that the branch of defendant’s cross motion for summary judgment seeking to dismiss plaintiff’s claims for dates of service from October 30, 2007 through January 30, 2008 is granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*3]
Decision Date: February 14, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), dated November 6, 2009. The order granted defendant’s motion to amend its answer to add affirmative defenses.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to amend its answer, approximately four years after joinder of issue, to add affirmative defenses asserting the existence of a personal injury deductible in the insurance contract and denying that plaintiff’s assignor was an eligible injured person. The Civil Court granted the motion.

Plaintiff does not deny that the underlying insurance contract contains a deductible or that defendant’s timely NF-10 denial of claim forms asserted the existence of the deductible (see e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U] [App Term, 2d & 11th Jud Dists 2005]). Although there was a lengthy period of time between the joinder of issue and the making of the motion to amend, lateness alone is not a barrier to amendment absent a showing of “significant” prejudice to the opposing party (Rodriguez v Panjo, 81 AD3d 805, 806 [2011]; see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [*2][1983]), or that the proposed defenses are “patently devoid of merit” or “palpably insufficient to state a . . . defense” (Lucido v Mancuso, 49 AD3d 220, 229 [2008]; see also Ingrami v Rovner, 45 AD3d 806, 808 [2007]; Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 137[A], 2009 NY Slip Op 51570[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In this case, while the delay was lengthy, plaintiff does not deny that discovery and trial postponements intervened to delay the action and for reasons unrelated to the motion’s merits. Since the defenses address the effect of contractual terms on recovery and since plaintiff does not deny defendant’s claim that its NF-10 forms invoked a deductible, the claim of surprise or prejudice so great as to warrant the motion’s denial is not established (e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U]).

Since plaintiff as assignee stands in the shoes of the insured, plaintiff cannot claim ignorance of the terms of the very contract under which it alleges entitlement to no-fault benefits compensation (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59 [App Term, 9th & 10th Jud Dists 2011]; see Ops. Gen. Counsel NY Ins. Dept. No 08-04-16 [April 2008] [assignee-provider “may pursue all of the remedies that would have been available to the patient”]). Upon the record before us, we find that the Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer to interpose the aforementioned affirmative defenses (CPLR 3025 [a]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 09, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 28, 2009. The order denied plaintiff’s motion to, among other things, compel certain discovery and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

After plaintiff had commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignors, defendant commenced a declaratory judgment action in Supreme Court, Queens County, against various medical providers and their assignors, including plaintiff and its assignors herein. By order dated October 26, 2007, the Supreme Court granted defendant’s motion for entry of a declaratory judgment, on default, declaring that defendant had “no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage” to the parties named as defendants in the declaratory judgment action. In December 2007, plaintiff herein moved to compel certain discovery from defendant or, in the alternative, to strike defendant’s answer. Defendant cross-moved for summary judgment [*2]dismissing the complaint, contending that this action was barred by virtue of the October 26, 2007 order of the Supreme Court. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s contention, the Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Furthermore, based on the Supreme Court’s order, plaintiff’s motion to compel discovery or, in the alternative, strike defendant’s answer was rendered moot, and, thus, properly denied. Plaintiff’s remaining contentions lack merit.

Accordingly, the order of the Civil Court is affirmed.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: February 09, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan Lebowitz, J.H.O.), entered September 22, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to strike the action from the trial calendar and to compel plaintiff to produce plaintiff’s owner for an examination before trial, and denied plaintiff’s cross motions seeking, among other things, costs and sanctions.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branches of defendant’s motion seeking to strike the action from the trial calendar and to compel plaintiff to produce plaintiff’s owner for an examination before trial, and denied plaintiff’s cross motions seeking, among other things, costs and sanctions.

Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to strike the matter from the trial calendar (see Citywide [*2]Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs., PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In addition, upon a review of the record, we see no basis to disturb so much of the Civil Court’s order as granted the branch of defendant’s motion seeking to compel plaintiff to produce plaintiff’s owner for an examination before trial. In light of the foregoing, plaintiff’s cross motions were properly denied.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: February 09, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered July 9, 2010. The order granted plaintiffs’ motion to restore the action to the trial calendar.

ORDERED that the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, the Civil Court granted plaintiffs’ motion to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). The owner of plaintiff Exact Medical Services, P.C. was Dr. Ronald Collins, who passed away on September 15, 2008. Anna Val, Esq., was appointed as the administrator of the estate of Dr. Collins on September 9, 2009. Her role was to preserve the value of, and prevent loss to, the estate.

For the reasons stated in Eastern Star Acupuncture, P.C. v Allstate Ins. Co. ( Misc 3d , 2012 NY Slip Op [Appeal No. 2010-2113 Q C], decided herewith), the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: February 02, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 2, 2012

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**36 Misc 3d at 42} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

This action by providers to recover assigned first-party no-fault benefits was “marked off” the trial calendar on September 25, 2009. On May 26, 2010, plaintiffs moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In a supporting affirmation, plaintiffs’ counsel stated that plaintiffs were “prepared to proceed to trial, and . . . to present proof . . . that payment of no-fault benefits [was] overdue.” In opposition, defense counsel argued that prosecution of the claims of plaintiff Painless Medical, P.C. could not be pursued because Dr. Ronald Collins, the sole shareholder, officer and director of Painless Medical, P.C., had passed away on September 15, 2008, and Anna Val, Esq., who had been appointed as the administrator of the estate of Dr. Collins on September 9, 2009, had no authority over Painless Medical, P.C. Defendant argued, among other [*2]things, that Ms. Val lacked the capacity to administer or become a shareholder of Painless Medical, P.C. because she did not possess a license to practice medicine, which is a requirement of Business Corporation Law §§ 1507 and 1508, and, therefore, she was not entitled to pursue pending litigation or collect settlements and judgments involving this provider.

“[A] corporation can act only through its officers and agents” (14A NY Jur 2d, Business Relationships § 627; see also 14A NY Jur 2d, Business Relationships § 614). Upon Dr. Collins’ death, Painless Medical, P.C. continued to exist (see Business Corporation Law § 1510), but was powerless to continue prosecuting its claims in this action until there was someone with authority who could authorize proceeding with this litigation (see Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). After her appointment by the Surrogate’s Court to act as the administrator of Dr. Collins’ estate, Ms. Val had the authority and power to, among other things, recover property belonging to Dr. Collins’ estate, prosecute an action to recover assets belonging to the estate, and settle claims for money owed to the estate (see e.g. 38 NY Jur 2d, Decedents’ Estates §§ 1442, 1513, 1521, 1532). It was not necessary that she be a member of the profession in which the professional corporation is authorized to practice, because Ms. Val was not acting in a professional capacity, i.e., as a director{**36 Misc 3d at 43} or officer of the professional corporation, but rather as an administrator, whose role is to preserve the value of, and prevent loss to, the estate.

The motion to restore was made within one year after the action had been “marked off” the trial calendar, and counsel’s supporting affirmation satisfactorily explained the reason that the action was “marked off” and showed a readiness to proceed to trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). Accordingly, the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.