New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
August 6, 2012
OCEAN DIAGNOSTIC IMAGING, P.C. AS ASSIGNEE OF AIKELI BOLES,
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.
Ocean Diagnostic Imaging, P.C. v Chubb Indem. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012
PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ
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 , affd 278 App Div 668 ; 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 ; McCormack v County of Westchester, 255 AD2d 296 ).
Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: August 06, 2012
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