Best Touch PT, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51789(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered April 29, 2014. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

On February 11, 2013, plaintiff commenced this action in the Civil Court, Kings County, to recover from defendant American Transit Ins. Co. (ATIC) assigned first-party no-fault benefits for services plaintiff had provided to its assignor, Emely Cordero, as a result of injuries sustained in a motor vehicle accident on October 23, 2011. Prior to the commencement of this action, ATIC had commenced a declaratory judgment action in the Supreme Court, Bronx County, against Emely Cordero and various providers, including plaintiff herein, alleging that, because Cordero had failed to appear at duly scheduled independent medical examinations, ATIC had no obligation to pay any claims for first-party no-fault benefits which had been submitted to ATIC by the various providers named in that action who had treated Cordero as a result of the October 23, 2011 accident. By order dated May 22, 2013, the Supreme Court (Julia I. Rodriguez, J.) granted ATIC’s motion for entry of a declaratory judgment, on default, declaring that ATIC was not obligated to pay any claims for no-fault benefits submitted by the parties named as defendants in the declaratory judgment action.

In August 2013, plaintiff herein moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint, contending that this action was barred by virtue of the May 22, 2013 order of the Supreme Court. Plaintiff did not oppose defendant’s cross motion. By order entered April 29, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Based upon the May 22, 2013 order of the Supreme Court, this action is barred under the doctrine of res judicata (see Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; 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]). To hold otherwise could result in a [*2]judgment in this action which would destroy or impair rights established by the Supreme Court’s order in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U]). Moreover, the Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

Accordingly, the order of the Civil Court is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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