Opinion
No. 2010–1589 K C.
2012-08-6
OCEAN DIAGNOSTIC IMAGING, P.C. as Assignee of Aikeli Boles, Respondent, v. CHUBB INDEMNITY INSURANCE COMPANY, Appellant.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
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 ( seeBusiness Corporation Law §§ 1507, 1511; see also Matter of Leonard, 199 Misc. 138 [1950],affd278 App.Div. 668 [1951];Ocean Diagnostic Imaging, P.C., 15 Misc.3d 9;38 N.Y. 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 A.D.2d 506 [2000];McCormack v.. County of Westchester, 255 A.D.2d 296 [1998] ).