Parisien v Avis Car Rental, LLC (2023 NY Slip Op 50891(U))

The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Michael Philippou of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated November 16, 2021. The order, insofar as appealed from and as limited by the brief, granted the branch of defendant’s motion seeking a permanent stay of the action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking a permanent stay of the action is denied.

Plaintiff commenced this action in August of 2018 to recover assigned first-party no-fault benefits for medical services he had provided to his assignor in December 2017 and January 2018 as a result of injuries allegedly sustained in an automobile accident on November 14, 2017. As limited by his brief, plaintiff appeals from so much of an order of the Civil Court (Matthew P. Blum, J.) dated November 16, 2021 as granted the branch of defendant’s motion seeking a permanent stay of the instant action based on the doctrines of collateral estoppel and/or res judicata as a result of an “order and judgment” (declaratory judgment order) issued by the Supreme Court, New York County (Gerald Lebovits, J.), on February 21, 2017. In the declaratory judgment order, the Supreme Court found that no-fault actions that had been commenced by plaintiff herein as a result of an accident on November 7, 2013 were permanently [*2]barred because plaintiff herein had been operating in violation of various New York State laws and therefore was not entitled to recover no-fault payments (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Plaintiff correctly argues that the Civil Court improperly applied the declaratory judgment order beyond its explicit purview so as to include this action, which was commenced more than eight months after the declaratory judgment order was issued (see Parisien v Zipcar, 77 Misc 3d 132[A], 2022 NY Slip Op 51245[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Active Care Med. Supply Corp. v Titan Ins.Co., 66 Misc 3d 144[A], 2020 NY Slip Op 50183[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Contrary to defendant’s contention that collateral estoppel effect should be given to the issue decided by the declaratory judgment order, namely that plaintiff was operating in violation of various New York State laws and not entitled to recover no-fault benefits, that issue is not identical to an issue to be decided in this case. The February 2017 declaratory judgment order could not have decided the issue of whether, in December of 2017 and January of 2018, plaintiff was continuing to operate in such a way that would preclude it from recovering any no-fault payments for the medical treatment rendered in connection with the November 14, 2017 accident. Thus, collateral estoppel does not apply here.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking a permanent stay of the action is denied.

TOUSSAINT, P.J., MUNDY and VENTURA, JJ., concur.