May 12, 2017

Active Care Med. Supply Corp. v Delos Ins. Co. (2017 NY Slip Op 50651(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Queens County, in which the defendant was awarded "$250 in fees" in a case involving a first-party no-fault benefits claim for medical supplies provided to the plaintiff's assignor who was injured in a motor vehicle accident. The main issue in the case was whether the action was barred by the doctrines of res judicata and collateral estoppel due to a previous order obtained by the defendant in a Supreme Court declaratory judgment action involving the same motor vehicle accident. The court ultimately dismissed the appeal, affirming the Civil Court's order granting the defendant's motion for summary judgment and denying the plaintiff's cross motion, as well as the award of defense counsel fees.

Reported in New York Official Reports at Active Care Med. Supply Corp. v Delos Ins. Co. (2017 NY Slip Op 50651(U))

Active Care Med. Supply Corp. v Delos Ins. Co. (2017 NY Slip Op 50651(U)) [*1]

Active Care Med. Supply Corp. v Delos Ins. Co.

2017 NY Slip Op 50651(U) [55 Misc 3d 144(A)]

Decided on May 12, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
NO.2015-2882 Q C

Active Care Medical Supply Corp., as Assignee of Salandy Akeller, Appellant,
against
Delos Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Rubin, Fiorella & Friedman, LLP (Conrad Horowitz, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 23, 2015. The order, insofar as appealed from as limited by the brief, sua sponte, awarded defense counsel “$250 in fees.”

ORDERED that the appeal is dismissed.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor, who had allegedly sustained injuries in a motor vehicle accident which had occurred on June 26, 2010. Defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrines of res judicata and collateral estoppel by virtue of an order it had obtained against this provider, among others, in a Supreme Court declaratory judgment action involving the same motor vehicle accident. Plaintiff opposed defendant’s motion and cross-moved for various types of relief. The Civil Court, in an order entered October 23, 2015, granted defendant’s motion for summary judgment dismissing the complaint, denied plaintiff’s cross motion and, sua sponte, awarded defense counsel “$250 in fees.” Plaintiff appeals, as limited by its brief, from so much of the order as awarded defense counsel “$250 in fees.”

For the reasons stated in Active Care Med. Supply Corp., as Assignee of Malcolm Sade v Delos Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op ______ [appeal No. 2015-2811 Q C]), decided herewith, the appeal is dismissed.

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

ENTER:

Paul Kenny

Chief Clerk
Decision Date: May 12, 2017