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DSD Acupuncture, P.C. v Metlife Auto & Home
2015 NY Slip Op 51778(U) [49 Misc 3d 153(A)]
Decided on December 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 2, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-1844 K C

DSD Acupuncture, P.C. as Assignee of Jennifer Rivera, Appellant,

against

Metlife Auto & Home, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 10, 2013. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident on October 13, 2009, plaintiff appeals from an order of the Civil Court entered June 10, 2013 which granted defendant's motion to dismiss the complaint.

The record indicates that, on May 5, 2010, defendant Metlife Auto & Home commenced a declaratory judgment action in Supreme Court, Kings County, against plaintiff and a number of other providers, as well as against plaintiff's assignor. After plaintiff and its assignor, among others, failed to appear or answer in the Supreme Court action, a judgment was entered on default on May 11, 2011, declaring that defendant was not obligated to provide insurance coverage to plaintiff and its assignor, among others; that the alleged October 13, 2009 motor vehicle accident was not a "covered event" but rather was "a staged and/or intentional incident"; and that defendant was not required to pay any amounts arising out of any current or future proceedings, including suits seeking to recover no-fault benefits arising out of the alleged motor vehicle accident.

Thereafter, on January 12, 2012, plaintiff commenced this action in the Civil Court. Defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (5), on the ground of res judicata. By order entered June 10, 2013, the motion was granted.

In light of the default declaratory judgment, the present action is barred under the doctrine of res judicata (see Flushing Traditional Acupuncture P.C. v Kemper Ins. Co.,42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; 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]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [*2][1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). "[A] declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a judgment taken by default which [as in the present case] has not been vacated" (EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d at 3).

Accordingly, the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.


Decision Date: December 02, 2015