Fine Needle Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50873(U))

Index No.: CV-700046-20/QU

Plaintiff’s counsel: Law Offices of Gabriel & Shapiro LLC, 3361 Park Avenue Suite 1000, Wantagh, NY 11793

Defendant’s counsel: Rivkin Radler LLP, 926 RexCorp Plaza, Uniondale, NY 11556

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

II. Background

In a summons and complaint filed July 12, 2018, Defendant commenced an action in Supreme Court, Nassau County (“Supreme Court Action“) against Plaintiff seeking a judgment declaring that Defendant owed no duty to pay Plaintiff’s No-Fault claims because Plaintiff failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Aff. of Pontrello, Ex. 3). In a summons and complaint filed January 2, 2020, Plaintiff sued Defendant insurance company to recover $346.52 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Martinez from September 8 to 27, 2017, for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Pontrello Aff., Ex. 1). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, [*2]111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). Here, Defendant relied on an order dated October 4, 2019 (“Supreme Court Order“) in the Supreme Court Action, in which Supreme Court denied Plaintiff’s motion to compel arbitration, finding that Plaintiff “failed to satisfy the requirement of insurance coverage by appearing for the examination under an oath as noticed by” Defendants (State Farm Mut. Auto. Ins. Co. v Fine Needle Acupuncture, PC, Sup. Ct. Nassau County, October 4, 2019, Brandveen, J., Index No. 609282/18; Motion, Pontrello Aff., Ex. 4). Since the Supreme Court Order was not an order granting Defendant a default judgment, as Defendant erroneously contended, here, Defendant failed to demonstrate that res judicata bars the present action.

Nevertheless, the related concept of collateral estoppel bars Plaintiff’s action. Collateral estoppel or issue preclusion prevents re-litigation of a factual or legal issue actually raised and resolved in a prior court determination (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018]; Buechel v Bain, 97 NY2d 295, 303 [2001]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 152 [2d Dept 2021]; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d 931, 931-32 [2d Dept 2021]). In order to apply collateral estoppel, “there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-04; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d at 932). In our instant case, both factors have been established. In the Supreme Court Action, Supreme Court found that Plaintiff failed to appear for the scheduled EUOs and did not challenge that Defendant requested the EUOs and had a valid reason for requesting them. It is well settled that noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Since Plaintiff is collaterally estopped from raising the issue of its non-attendance of the EUOs in the instant matter and Defendant presented evidence that it had timely denied Plaintiff’s claim based on Plaintiff’s failure to attend the EUOs (see Motion, Pontrello Aff., Ex. A), Defendant here is entitled to dismissal of Plaintiff’s complaint.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment is granted without opposition and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.