Cho v Yongshin Cho

Sam Kyung Cho v Yongshin Cho 2007 NY Slip Op 08856 [45 AD3d 388] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Sam Kyung Cho, M.D., as a Statutory Beneficiary of the Estate of Won Kyung Cho, Deceased, Appellant,
v
Yongshin Cho et al., Respondents, et al., Defendant.

—[*1] Tuan & Cho, LLP, New York City (Dean T. Cho of counsel), for appellant.

Order and judgment (one paper), Supreme Court, New York County (Leland DeGrasse, J.), entered June 22, 2006, which granted plaintiff's motion for leave to reargue, and upon reargument, adhered to its prior order, entered March 28, 2006, denying plaintiff's motion for partial summary judgment and, in the alternative, for a default judgment against the individual defendants, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of transferring the action to Surrogate's Court, New York County, and otherwise affirmed, without costs.

The court properly denied plaintiff's motion for partial summary judgment. Plaintiff lacked standing to commence this action because only a duly appointed representative may maintain an action on behalf of an estate (see Palladino v Metropolitan Life Ins. Co., 188 AD2d 708 [1992]).

Since counsel advises the Court that plaintiff has obtained letters of administration, and in the interests of judicial economy, the action is transferred to the Surrogate's Court, which is the more appropriate forum for adjudication of the issues raised herein (see Ahders v Ahders, 176 AD2d 230 [1991]). Concur—Friedman, J.P., Sullivan, Buckley and Malone, JJ.