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Ab Medical, Pllc As Assignee of Lucienne Charlot v. Unitrin Advantage Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 27, 2011

AB MEDICAL, PLLC AS ASSIGNEE OF LUCIENNE CHARLOT,
APPELLANT,
v.
UNITRIN ADVANTAGE INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 18, 2010.

AB Med., PLLC v Unitrin Advantage Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2011

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment and granted so much of defendant's motion for discovery as related to plaintiff's current corporate status.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking discovery related to plaintiff's current corporate status is denied; 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 and defendant moved to, among other things, compel plaintiff to provide discovery. The Civil Court, insofar as is relevant to this appeal, denied plaintiff's motion for summary judgment on the ground that plaintiff had failed to demonstrate its prima facie entitlement to judgment as a matter of law, and granted the branch of defendant's motion seeking to compel plaintiff to provide discovery regarding plaintiff's "current legal/corporate status."

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). In this case, the Civil Court found, among other things, that plaintiff had failed to establish its prima facie entitlement to summary judgment. As plaintiff does not address that finding on appeal, we decline to disturb the Civil Court's denial of plaintiff's motion for summary judgment.

We further find that defendant has not demonstrated that discovery on the issue of plaintiff's current corporate status is material and necessary to its defense of this action (see CPLR 3101). Plaintiff, as a "professional service limited liability company" (Limited Liability Company Law § 1201 [f]), could render professional services only through individuals authorized by law to render such professional services (Limited Liability Company Law § 1204 [a]). The medical license of plaintiff's sole member, Alexander Braver, was suspended in 2007, rendering him legally disqualified from practicing medicine within the state and disqualifying him from continuing as a member of plaintiff (see Limited Liability Company Law § 1209). Dissolution occurred on the effective date of the suspension of Braver's medical license since, at that point, there were no remaining members of the professional service limited liability company (see Limited Liability Company Law § 701 [a] [4] [a "limited liability company is dissolved and its affairs shall be wound up . . . at any time there are no members"]). Since Braver was the sole member of such company, he may wind up the professional service limited liability company's affairs by, among other things, prosecuting and/or defending an action on behalf of the professional service limited liability company (see A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]).

In view of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking discovery related to plaintiff's current corporate status is denied.

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

Decision Date: July 27, 2011

20110727

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