Metropolitan Diagnostic Med. Care, P.C. v American Commerce Ins. Co. (2016 NY Slip Op 50216(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Metropolitan Diagnostic Medical Care, P.C. (Metropolitan) commenced this action in the Civil Court on March 14, 2012 to recover first-party no-fault benefits for services provided to its assignor as a result of injuries that had been sustained in a motor vehicle accident. American Commerce Insurance Company (ACIC) answered the complaint, asserting, among other things, that Metropolitan’s action is barred by the doctrines of collateral estoppel and res judicata. Approximately one week before Metropolitan commenced its Civil Court action, ACIC had commenced a declaratory judgment action in Supreme Court, New York County, against Metropolitan and its assignor, Kester Alleyne, among others, alleging that Alleyne had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, ACIC is not obligated to pay any claims for first-party no-fault benefits submitted by Metropolitan as assignee of Alleyne arising from the accident in question. ACIC subsequently moved in Supreme Court for an order, pursuant to CPLR 3215, granting ACIC a default judgment. By “order and judgment” entered February 7, 2013, the Supreme Court awarded ACIC a declaratory judgment on default, declaring that ACIC had no obligation to pay Metropolitan or its assignor for any claims for no-fault benefits under the claim number at issue.

Thereafter, ACIC moved in the Civil Court for, among other things, summary judgment dismissing the complaint on the ground that Metropolitan’s cause of action is barred under the doctrines of res judicata and collateral estoppel. In opposition to the motion, Metropolitan submitted an affirmation by its counsel, who argued, among other things, that Metropolitan had been unaware of the Supreme Court action when it had commenced this action in the Civil Court, and that ACIC’s answer in the Civil Court had failed to assert the pendency of the declaratory judgment action as an affirmative defense. By order entered January 24, 2014, the Civil Court granted the branch of ACIC’s motion seeking summary judgment dismissing the complaint.

In light of the “order and judgment” in the declaratory judgment action, the present action [*2]is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 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 Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). We note that, contrary to Metropolitan’s contention, defendant’s answer in the Civil Court, which answer had been filed after the Supreme Court declaratory judgment action had been commenced but before the default “order and judgment” had been entered, asserted that another action was “pending between the same parties for the same cause of action in a different court.” We also find no merit in the particular equitable estoppel argument raised by Metropolitan on appeal. Metropolitan’s remaining arguments similarly lack merit.

Accordingly, the order is affirmed.

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