[*1]
Omphil Care, Inc. v Hertz Co.
2015 NY Slip Op 51052(U)
Decided on July 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : ALIOTTA, J.P., SOLOMON and ELLIOT, JJ.
2013-2529 K C

Omphil Care, Inc. as Assignee of KEESHAN HARLEY, Respondent, July 7, 2015

against

Hertz Co., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 2, 2013, deemed from a judgment of the same court entered September 18, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 2, 2013 order which, among other things, granted plaintiff's motion for summary judgment and denied the branch of defendant's cross motion seeking summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,241.39.

ORDERED that the judgment is reversed, with $30 costs, the order entered August 2, 2013 is vacated, plaintiff's motion for summary judgment is denied, and the branch of defendant's cross motion seeking summary judgment dismissing the complaint is granted.


Plaintiff Omphil Care, Inc. (Omphil) commenced this action on December 9, 2011 to recover from defendant Hertz Co. (Hertz) assigned first-party no-fault benefits for supplies provided to plaintiff's assignor as a result of injuries he had allegedly sustained in a motor vehicle accident on May 18, 2011. After issue was joined, Omphil, on December 27, 2012, moved for summary judgment. On May 2, 2013, Hertz cross-moved for a stay of the action, pursuant to CPLR 2201, or, in the alternative, for summary judgment dismissing the complaint.

In support of its cross motion, Hertz noted that, while the Civil Court action had been pending, Hertz had commenced a declaratory judgment action in Supreme Court, New York County, against Omphil and its assignor, among others, seeking, among other things, a declaration that it was not obligated to pay any claims for no-fault benefits arising out of the May 18, 2011 accident. After Omphil, among others, failed to appear or answer in the Supreme Court action, Hertz moved for a default judgment, pursuant to CPLR 3215. By order and judgment dated April 30, 2013, the Supreme Court (Ellen M. Coin, J.) granted Hertz's motion, stating, in pertinent part, that Hertz had no obligation to pay no-fault benefits to Omphil for claims arising out of the May 18, 2011 accident. At the time that Hertz filed its cross motion in the Civil Court, the Supreme Court order and judgment had not yet been served with notice of entry.

Defendant took an appeal from an order of the Civil Court granting plaintiff's motion and denying defendant's cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The doctrines of res judicata and collateral estoppel are designed to put an end to a matter [*2]once it is duly decided (see Siegel, NY Prac § 442, at 772 [5th ed]). Res judicata, or claim preclusion, is invoked when a party, or those in privity with the party, seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or a series of transactions which were raised or could have been raised in a prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). It is well settled that default judgments can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; 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]).

In light of the Supreme Court's declaratory judgment, the branch of defendant's motion seeking summary judgment dismissing the complaint should have been granted


under the doctrine of res judicata (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]; 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]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court's declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307; 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]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). The fact that Hertz, at the time it made its cross motion, had not yet served Omphil with notice of entry of the Supreme Court judgment is not fatal, in view of the binding and conclusive effect of the judgment (see Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 44 Misc 3d 143[A], 2014 NY Slip Op 51324[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; see also All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the judgment is reversed, the order entered August 2, 2013 is vacated, plaintiff's motion for summary judgment is denied, and the branch of defendant's cross motion seeking summary judgment dismissing the complaint is granted.

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


Decision Date: July 07, 2015