Opinion
2012-02-2
EASTERN STAR ACUPUNCTURE, P.C. and Painless Medical, P.C. as Assignees of Yaira Abraham, Respondents, v. ALLSTATE INSURANCE CO., Appellant.
Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.
PRESENT: WESTON, J.P., PESCE and RIOS, JJ.
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.
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 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 N.Y. Jur. 2d, Business Relationships § 627; see also14A N.Y. Jur. 2d, Business Relationships § 614). Upon Dr. Collins' death, Painless Medical, P.C. continued to exist ( seeBusiness 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, 832 N.Y.S.2d 383 [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 N.Y. Jur. 2d, Decedents' Estates §§ 1442, 1513, 1521 and 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 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 New York City Civ. Ct. [22 NYCRR] § 208.14[c] ). Accordingly, the order is affirmed.