Bernard O. Feldman, DDS, P.C. v. Mazzei
| Decision Date | 05 September 1995 |
| Citation | 631 N.Y.S.2d 241,166 Misc.2d 69 |
| Parties | BERNARD O. FELDMAN, DDS, P.C., Plaintiff, v. Rudolph MAZZEI, Defendant. |
| Court | New York District Court |
Bernard O. Feldman, DDS, P.C., Lake Ronkonkoma, plaintiff pro se.
Rudolph S. Mazzei, Middle Island, pro se.
In this commercial claim, defendant moves to dismiss, asserting that this action is being maintained improperly by an employee of plaintiff, a professional corporation, as its agent.
Pursuant to UDCA 1809-A(d), a corporation may appear by any of its authorized directors, officers or employees, as well as by attorneys. The gravamen of this motion is that the individual who has commenced this litigation for plaintiff, a professional corporation engaged in the practice of dentistry, is not herself a dentist or an attorney, and as a matter of law she cannot be an officer, director or shareholder of the corporation (see BCL §§ 1507, 1508). Defendant concludes that since the agent is not an officer, director, or shareholder, she cannot be authorized to appear for plaintiff in commercial claims litigation. For purposes of the instant motion, the court assumes the agent is neither an attorney nor a dentist.
In support of his position, defendant relies on caselaw decided in 1983 involving UDCA 1809(2) (see Bradley v. Weber, 122 Misc.2d 428, 473 N.Y.S.2d 89). At the time, apart from attorneys, only shareholders and officers were permitted to appear for corporations in small claims matters under that statute. However, in 1984 the legislature amended the statute to its present form, pursuant to which not only officers and directors may appear for a corporation, but employees may do so as well (L 1984, ch 157). In the legislative memorandum accompanying the amendment, reference was made to the limitation of authorized agents to shareholders and officers. The amendment was intended to permit "corporations to be represented by any authorized officer, director or employee " (L 1984, Legislative Memorandum to ch 157, p 3164 at 3165 [emphasis added]. Authorized employees of professional corporations are not limited by law to individuals authorized to practice the profession constituting the business of the organization, and the legislative memorandum contains no indication that the term "employee" as used in amended UDCA 1809(2) was to be so limited.
When the commercial claims article was enacted, the legislature, in identifying those authorized to...
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