|Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co.|
|2015 NY Slip Op 50222(U) [46 Misc 3d 147(A)]|
|Decided on February 24, 2015|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 13, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for services it provided to its assignor, who had sustained injuries in a motor vehicle accident that had occurred on February 13, 2011. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, New York County, against various medical providers and their assignors, including plaintiff herein and its assignor. By order dated July 31, 2012, the Supreme Court granted, on default, defendant's motion for the entry of a declaratory judgment and found that defendant "has no obligation to pay no-fault benefits to" plaintiff and its assignors "arising out of a collision that occurred on February 13, 2011." In October 2012, plaintiff moved for, among other things, summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrines of res judicata and collateral estoppel by virtue of the July 31, 2012 Supreme Court order in the declaratory judgment action. By order entered May 13, 2013, the Civil Court denied plaintiff's motion and granted defendant's cross motion.
Contrary to plaintiff's contention, the instant action is barred under the doctrine of res judicata by virtue of the July 31, 2012 Supreme Court order (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the Supreme Court's order (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 ; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court's order is a conclusive final determination notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 ; Matter of Allstate Ins. Co. v Williams, 29 AD3d 658, 690 ; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 ; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Plaintiff's remaining contentions lack merit or are unpreserved for appellate review.
Accordingly, the order of the Civil Court is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.