January 10, 2014

Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co. (2014 NY Slip Op 50052(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Flushing Traditional Acupuncture, provided acupuncture services to an injured individual who was covered by a no-fault insurance policy with Kemper Insurance Company. Subsequently, Kemper filed a declaratory judgment action against the plaintiff and other providers, alleging breach of the insurance policy for failing to appear for scheduled examinations under oath. The Supreme Court entered a judgment declaring that the plaintiff and other providers were not entitled to recover no-fault benefits. The main issue decided was whether the present action by the plaintiff to recover assigned first-party no-fault benefits was barred under the doctrine of res judicata due to the prior judgment entered by the Supreme Court. The holding of the court was that the present action was indeed barred by the doctrine of res judicata, as any judgment in favor of the plaintiff would destroy or impair rights or interests established by the Supreme Court judgment. Therefore, the court affirmed the order granting Kemper's motion to dismiss the complaint.

Reported in New York Official Reports at Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co. (2014 NY Slip Op 50052(U))

Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co. (2014 NY Slip Op 50052(U)) [*1]

Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co.

2014 NY Slip Op 50052(U) [42 Misc 3d 133(A)]

Decided on January 10, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2014

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

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ
2012-932 K C.

Flushing Traditional Acupuncture, P.C. as Assignee of DWAYNE GRIFFITHS, Appellant,
against
Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 6, 2012. The order granted defendant’s motion to dismiss the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, the record indicates that, subsequent to the provision of acupuncture services by plaintiff to its assignor, defendant Kemper Insurance Company (Kemper) commenced a declaratory judgment action in the Supreme Court, New York County, against plaintiff, 12 other providers and the injured assignor, alleging that the providers had breached the terms of the insurance policy by failing to appear for scheduled examinations under oath. On September 4, 2009, several months after the declaratory judgment action had been filed, plaintiff commenced the present action in the Civil Court. In a judgment entered on default on June 22, 2010, the Supreme Court declared that plaintiff and the other named providers were not entitled to recover no-fault benefits arising out of the accident in question. Kemper thereafter moved in the Civil Court to dismiss plaintiff’s complaint, contending that the instant action is barred by virtue of the declaratory judgment. Plaintiff appeals from an order of the Civil Court which granted Kemper’s motion and dismissed the action.

In light of the declaratory judgment, the present action 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, 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] SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929] S.Z. Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur. [*2]
Decision Date: January 10, 2014