Civil Court of the City of New York, Kings County, August 13, 2021

Rubin Fiorella & Friedman, New York City (Michael Philippou of counsel), for defendant.

The Rybak Firm, PLLC, Brooklyn (Richard Rozhik of counsel), for plaintiff.

The decision and order on the motions are as follows:

Defendant moves to dismiss this action pursuant to CPLR 3211 (a) (5) and 3212 on the ground that the action is barred by the doctrines of res judicata and collateral estoppel, or alternatively, to permanently stay the action, pursuant to a declaratory judgment order of New York Supreme Court issued by Hon. Gerald Lebovits on February 21, 2017, which found that Jules Parisien, M.D., is not properly formed because he has engaged in "improper splitting of fees." The declaratory judgment order, inter alia, permanently stayed actions commenced by Jules Parisien, M.D., against various defendants including Zipcar LLC. Plaintiff cross-moves for summary judgment pursuant to CPLR 3212 (a) and (g).

First and foremost, this Civil Court action was commenced after the issuance of said declaratory judgment. Thus, movant seeks to enforce a dispositive order to actions and proceedings that had not yet accrued or commenced as of the date of the order.

The Court of Appeals has long recognized that the doctrines of res judicata and collateral estoppel apply to circumstances where a party has had a full and fair opportunity to litigate a particular issue which her adversary seeks to bar by a prior order.{**73 Misc 3d at 257} (See Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65, 69 [1969]; People v Evans, 94 NY2d 499, 502 [2000].) It is inconceivable that a declaratory judgment order that is based on improper conduct to wit, the "splitting of fees," would apply indefinitely to an infinite number of matters not yet accrued or commenced. Defendant fails to submit authority to show that an order may preemptively stay an action that has not been commenced. To the contrary, the Appellate Term has held that a declaratory judgment order finding plaintiff lacked a license did not apply to any future actions. (See Active Care Med. Supply Corp. v Titan Ins. Co., 66 Misc 3d 144[A], 2020 NY Slip Op 50183[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020].)

Further, defendant is requesting that this court expands the application of the declaratory judgment order beyond its explicit purview to include future actions. The declaratory judgment order plainly states that actions commenced by Jules Francois Parisien, M.D., "are stayed" without any reference to future actions. This court lacks authority to speculate and expand the application of the order beyond its explicit scope. Had the declaratory judgment order been intended to apply to countless future actions, the Judge would have simply so stated in the order or precluded plaintiff from commencing further actions against defendant.

Defendant also contends that the declaratory judgment order's finding that Jules Parisien, M.D., was improperly formed (due to his ownership of various entities and their practices) is of such nature that would necessarily bar him from ever seeking first-party benefits from defendant. Defendant's argument is unavailing at best absent evidence that plaintiff's afore-described misconduct is incurable or is of such immutable nature that would necessarily extend to the future.

Based on the foregoing, defendant's motion for summary judgment is denied.

Plaintiff's cross motion for summary judgment is granted only to the extent of establishing that the bills at issue were mailed and received by defendant and that said bills [*2]remain unpaid.^[FN*]