Trapezius Diagnostic Chiropractic, P.C. v Adirondack Ins. Exch. (2025 NY Slip Op 50173(U))

McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (L. Austin D’Souza, J.), dated May 8, 2023. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross-motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

Trapezius Diagnostic Chiropractic, P.C. (Trapezius) commenced this action to recover assigned first-party no-fault benefits for medical services that it had provided to its assignor as a result of injuries which the complaint stated had been sustained in a motor vehicle accident on November 4, 2017. After Adirondack Insurance Exchange (Adirondack) filed its answer, it separately commenced a declaratory judgment action in Supreme Court, Nassau County, against Trapezius, among others, alleging that Adirondack had no duty to pay no-fault benefits to Trapezius with respect to an accident which had occurred on November 14, 2017. In a default judgment entered on March 5, 2021 against Trapezius, among others, based on their failure to appear or answer, the Supreme Court declared that the November 14, 2017 accident was a “staged accident” and that Adirondack was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by Trapezius arising from that accident.

Adirondack, thereafter, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the instant action was barred by virtue of the declaratory judgment. In support of its motion, Adirondack submitted an attorney’s affirmation and annexed the declaratory judgment and Trapezius’s complaint in that action. Plaintiff cross-moved for summary judgment. In opposition, defendant submitted an affidavit of its employee who stated that there was no accident involving the parties on any date other than November 14, 2017. By order dated May 8, 2023, the Civil Court (L. Austin D’Souza, J.) denied Adirondack’s motion and granted plaintiff’s cross-motion for summary judgment. The Civil Court stated that the accident date listed in the complaint was not the same as the one listed in the declaratory judgment and the affidavit of defendant’s employee did not mention a November 4, 2017 accident.

Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]).

Adirondack failed to establish, prima facie, that, in this action, Trapezius sought to recover for medical services rendered to its assignor as a result of injuries allegedly sustained by its assignor in the November 14, 2017 accident that was the subject of the Supreme Court declaratory judgment action. Defendant’s submissions in support of its summary judgment motion highlight the discrepancy as to the date of the accident. The affidavit of defendant’s employee was not submitted in further support of defendant’s motion, and, in any event, the affidavit was conclusory in its statement that there was no accident on November 4, 2017 (see Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Adirondack failed to establish that the instant action is barred by res judicata (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; cf. Medical Supply of NY Corp. v Nationwide Ins. Co.,77 Misc 3d 133[A], 2022 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; New Millennium Med. Imaging, P.C. v Repwest Ins. Co., 72 Misc 3d 127[A], 2021 NY Slip Op 50577[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Moreover, Adirondack failed to establish its prima facie entitlement to judgment as a matter of law based on a theory of collateral estoppel, as it failed to establish that the issues litigated and determined in the prior action were identical to the issues on which preclusion is now sought (see Parisien v Kemper Ins. Co., 76 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

However, plaintiff’s cross-motion for summary judgment also should have been denied as there is a material issue of fact as to the date of the accident and the proof submitted in support of plaintiff’s cross-motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had [*2]issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s cross-motion for summary judgment is denied.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.