Ocean Diagnostic Imaging, P.C. v. Merchants Mutual Insurance

15 Misc. 3d 9

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 6, 2007
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

Appeal dismissed.

While plaintiffs motion for summary judgment was pending before the Civil Court, Stephen A. Zinn, M.D., who was the sole officer, director and shareholder of plaintiff, died. In an order dated August 16, 2005, plaintiffs motion for summary judgment was denied on the ground that the “court has no jurisdiction” due to Zinn’s death. Thereafter, a substitution of counsel form was executed, purportedly on behalf of plaintiff, and successor counsel filed a notice of appeal, also purportedly on plaintiffs behalf, and subsequently filed an appellant’s brief. It is contended in the brief that Zinn’s death did not divest the court of jurisdiction because Zinn was not a party to this action and plaintiff, a professional service corporation, was a separate legal entity.

In the instant case, upon the death of Zinn, plaintiff continued to exist (see e.g. Business Corporation Law § 1510), but, for all practical purposes, it was powerless to proceed with this action. There was no one with the authority to, inter alia, execute the substitution of counsel, retain new counsel, or authorize the filing of the notice of appeal and the prosecution of the appeal. Upon his death, Zinn’s shares in plaintiff became an asset of his estate and this record does not establish that any of the actions involved herein were authorized by someone with the authority to do so (see Business Corporation Law §§ 1507, 1511; see also Matter of Leonard, 199 Misc 138 [1950], affd 278 App Div 668 [1951]; 38 NY Jur 2d, Decedents’ Estates §§ 53, 1510, 1513, 1521, 1532).

In light of the foregoing, the instant appeal must be dismissed.

Pesce, RJ., Weston Patterson and Golia, JJ., concur.