OCEAN DIAGNOSTIC IMAGING v. MERCHANTS MUTUAL INSURANCE COMPANY (2007)

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 16, 2005.   The order denied plaintiff's motion for summary judgment on the ground that the court lacked jurisdiction due to the death of plaintiff's sole officer, director and shareholder.

Appeal dismissed.

While plaintiff's 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, plaintiff's 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 plaintiff's 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, 100 N.Y.S.2d 105 [1950], affd. 278 App.Div. 668, 103 N.Y.S.2d 136 [1951];  38 N.Y. Jur.2d, Decedents' Estates §§ 53, 1510, 1513, 1521, and 1532).

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