Parisien v ZipCar c/o Corp. Serv. Co. (2026 NY Slip Op 26130)

Reported in New York Official Reports at Parisien v ZipCar c/o Corp. Serv. Co. (2026 NY Slip Op 26130)

Civil Court of the City of New York, Kings County

Decided on August 7, 2026

Index No. CV-744763-18/KI

Javier Ortiz, J.

Recitation as required by CPLR § 2219 [a], of the papers considered in review of Defendant’s motion for a directed verdict:

Papers Numbered

D’s Motion & Affirmation 51

P’s Memorandum of Law in Opposition 52

After trial proceedings held on February 9, 2026, and upon the foregoing cited papers submitted after trial proceedings concluded, the Decision and Order on Defendant Zipcar c/o Corporation Service Co.’s (“Zipcar”) motion for a directed verdict is as follows:

On or about September 27, 2018, Plaintiff Jules Francois Parisien, M.D. A/A/O Daniel Jones (“Parisien”) commenced this action for failure to pay No-Fault benefits and demanded $2,836.94, statutory interest, attorneys’ fees, costs, fees, and disbursements. Zipcar answered and [*2]issued discovery demands on or around February 28, 2019. The parties both moved for summary judgment. On October 19, 2021, the Honorable Nicholas W. Moyne granted Plaintiff’s motion only to the extent that Plaintiff had established its prima facie case for all purposes. Judge Moyne denied Defendant’s motion on the grounds that a Declaratory Judgment order issued by Justice Gerald Lebovits of the New York County Supreme Court under Index Number 150666/2015 was ambiguous regarding whether it applied to this action. The parties filed numerous other motions, but those motions were all ultimately withdrawn or denied. A notice of trial was filed on or about December 9, 2021.

The trial in this matter was assigned to Part 67 in December 2025. The parties submitted numerous trial exhibits to the Court. On December 30, 2025, I ordered a briefing schedule on a motion in limine that Plaintiff sought in order to preclude Defendant from introducing any declaratory judgment order at trial based on Judge Moyne’s order pertaining to the order issued by Justice Lebovits. That motion in limine was briefed in January 2026. On January 16, 2026, Parisien filed a trial memorandum pertaining to the October 22, 2021 declaratory judgment order of Justice Phillip Hom of the Supreme Court, New York County (“Justice Hom DJ Order”). On January 30, 2026, Defendant filed a trial memorandum discussing the Justice Hom DJ Order.

On February 4, 2026, this court held a virtual bench trial. At trial, Parisien presented Judge Moyne’s decision and order holding that Plaintiff had established their prima facie case for all purposes and rested. Defendant then offered the Justice Hom DJ Order. Plaintiff objected. Zipcar then orally moved for a directed verdict. Parisien opposed. A briefing schedule was set. Defendant filed a motion for a directed verdict to which Plaintiff objected.

For the following reasons, Defendant’s motion is GRANTED.

On or about February 7, 2019, an action was commenced in Supreme Court, New York County against Parisien, assignor Jones, and others under index number 151339/2019. The plaintiff in that action is “PV Holding Corp. including all of its subsidiaries and affiliates, including but not limited to . . . Zipcar, Inc.” On or around January 30, 2020, the plaintiff in that action, PV Holding Corp. (“PV”) filed a motion for a declaratory judgment against most of the named defendants in that action, including Parisien and assignor Jones. On April 23, 2020, the Honorable Kathryn E. Freed, J.S.C. denied that motion with leave to renew. PV then moved to reargue that motion. On October 22, 2021, upon re-argument, Justice Hom granted that motion, holding that “a default judgment against the medical provider[s] . . . acting as assignees for . . . Jones based on their failure to appear for [examinations under oath (EUOs)] and . . . there is no No-Fault coverage for their alleged claims involving the May 13, 2018 collision under Avis Claim Number 188021493.” That collision date and claim number are the same as alleged by Plaintiff here.

At trial, Defendant offered the Justice Hom DJ Order as its sole piece of evidence. This Court, over Plaintiff’s objection, took judicial notice of the decision and admitted it into evidence.

Defendant now moves for a directed verdict on the grounds that Parisien’s claims are barred under the doctrines of res judicata and collateral estoppel. Plaintiff opposes, arguing that Defendant failed to meet its burden of proof. Plaintiff maintains that this Court may not consider the Justice Hom DJ Order in determining the outcome of the present motion because Plaintiff says that it is inadmissible, irrelevant, improperly before the Court, and — if admitted it in evidence — ineffective.

Standard of Review

CPLR 4401 provides:

Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified. . .

Analysis

i. CPLR 4511(b)

Plaintiff argues that the motion for a directed verdict should be denied because Defendant failed to abide by the requirements of CPLR 4511(b), thereby precluding this Court from taking judicial notice of the Justice Hom DJ Order.

“Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and proof of documents generally do not make sense to apply to statutes or judicial opinions—which are technically documents—because they are presented to the court as law, not to the jury as evidence.” (MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69, 74, 2011 NY Slip Op 21480 [App Term, 2d Dept 2011], quoting Getty Petroleum Mktg., Inc. v Capital Term. Co., 391 F3d 312, 322 [1st Cir. 2004].) CPLR 4511(b) states that a court shall take judicial notice of specified matters “if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice.” (CPLR 4511(b); see also Edwards v Erie Coach Lines Co., 17 NY3d 306, 328 [2011] [finding that judicial notice was properly taken by the lower court where these conditions were complied with].)

In advance of trial, Defendant requested that the Court take judicial notice of the Justice Hom DJ Order, provided sufficient information to the Court, and noticed Parisien pre-trial in its motion in limine papers of its intent to use the order at trial. Therefore, the Court finds that Defendant complied with all requirements of CPLR 4511(b) and that notice was proper.

ii. Judicial Notice of an order from separate action.

Plaintiff argues that although this Court took judicial notice of the Justice Hom DJ Order, it is not admissible evidence. This argument is without merit. There has been no showing that the Justice Hom DJ Order is hearsay, opinion, or was disputed. Also, this is not a mere document present in the court file: it is a judicial decision. Additionally, Plaintiff has not disputed any of the factual findings made in the Justice Hom DJ Order. Justice Hom held that there is no No-Fault coverage for Parisien regarding the same transaction and occurrence that gave rise to the present action on the grounds that the relevant parties failed to appear for their EUOs. That decision clearly resolves all issues contested in this matter.

iii. Collateral Estoppel & Res Judicata

Plaintiff argues that the elements of collateral estoppel and res judicata have not been [*3]established. These arguments are also without merit.

“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.” (In re Hunter, 4 NY3d 260, 269 [2005].) Importantly here, “a judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised or could have been raised in the prior action.” (Matter of Hereford Ins. Co. v Shelly, 242 AD3d 986, 987 [2d Dept 2025].) Additionally, res judicata “is applicable to an order or judgment entered upon default that has not been vacated . . . .” (Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2d Dept 2006] [emphasis added]; see also Kerisli Chiropractic, P.C. v Am. Tr. Ins. Co., 61 Misc 3d 1004, 2018 NY Slip Op 28325 [Civ Ct, Kings County 2018] [“An order specifying the court’s declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default.”)

Meanwhile, as for collateral estoppel:

Collateral estoppel, or issue preclusion, is a corollary to the doctrine of res judicata and bars the relitigating of an issue which was actually and necessarily previously decided in a prior proceeding . . . . The issue must have been essential to the decision rendered in the first action and must be the point to be decided in the second action such that a different judgment in the second would destroy or impair rights or interests established in the first.

The proponent of collateral estoppel must show that (1) there was a full and fair opportunity to contest the decision that is alleged to be dispositive in the present action and (2) the issue in the present proceeding is identical to that decided in the present proceeding.

(Psychology YM P.C. v Travelers Prop. Cas. Ins. Co., 33 Misc 3d 1201(A), 2011 NY Slip Op 51744(U) [Civ Ct, Kings County 2011] [citations and internal quotations omitted].)

Here, Zipcar invokes res judicata and collateral estoppel against Plaintiff based upon the Justice Hom DJ order, which was decided on default and held that Plaintiff my not recover no-fault benefits for its or its assignors’ failing to appear for EUOs, a breach of a condition precedent under the applicable motor vehicle policy. Justice Hom’s decision holds that there is no no-fault coverage available for the collision at issue here.

Plaintiff argues that an issue is not “actually litigated” where the prior determination was issued upon a default. However, a “Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on default . . . , since res judicata applies to a judgment taken by default that has not been vacated.” (Altercare Acupuncture, P.C. v Utica Mut. Ins. Co., 32 Misc 3d 1239(A), 2011 NY Slip Op 51639(U) [Civ Ct, Kings County 2011]; see also Matter of Hereford, 242 AD3d at 987; Yardeny v Jordan, 118 AD3d 985, 985 [2d Dept 2014] [finding res judicata applicable where a default judgment was entered in a prior action]. Parisien has not moved to reargue, vacate, or appeal the Justice Hom DJ Order. In fact, no further litigation has ensued after Zipcar filed the Justice Hom DJ Order with notice of entry and affidavit of service on October 25, 2021. The “Case Status” in the Supreme Court action is marked as “Disposed.”

Further, to the extent there is any doubt that Plaintiff here had a full and fair opportunity to contest the Supreme Court decision, in that action, Parisien and assignor Jones were served with the summons and complaint as well as all relevant motions. Justice Freed specifically found that Parisien and assignor Jones “were served with process but failed to answer or otherwise appear in the matter.”

Plaintiff also points to some appellate term decisions that hold that a declaratory judgment order cannot be considered a conclusive final determination if such order does not “make a statement declaring the rights of the parties involved.” (Active Chiro., P.C. v 21st Century Ins. Co., 58 Misc 3d 156(A), 2018 NY Slip Op 50200(U) [App Term, 2d Dept 2018]; Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128(A), 2015 NY Slip Op 51886(U) [App Term, 2d Dept 2015].) However, as discussed above, the Justice Hom DJ Order does declare the rights of the parties involved and specifies that Plaintiff and its assignor here are not entitled to no-fault benefits on account of failure to attend EUOs. The situation presented here is just like the one before the Kings County Civil Court in Kerisli Chiropractic, P.C. v Am. Tr. Ins. Co., where this Court found:

In the instant no-fault action, contrary to Active Chiropractic P.C. and Promed Orthocare Supply Inc., the Supreme Court’s declaratory judgment order determines the rights of the parties and is thus preclusive as a final order. The Supreme Court’s order recites the specific declaratory relief requested by the insurer, and grants the motion on default, leaving no ambiguity as to the substance of the court’s declaration.

(61 Misc 3d at 1004.)

Accordingly, the Court finds that res judicata and collateral estoppel apply to the Justice Hom DJ Order and that Plaintiff’s claims are barred.

iv. Judgment Entered — CPLR §§3001, 5011, and 5016

Plaintiff also makes a related argument that the Justice Hom DJ Order should have no preclusive effect because it is not a final, entered judgment. Plaintiff’s argument is without merit. While an action is not concluded until a final judgment is entered, a decision granting a declaratory judgment which makes a statement declaring the rights of the parties has a preclusive effect even if it is an order and not final judgment, as discussed immediately above. (See Eagle Ins. Co. v Facey, 272 AD2d 399, 400 [2d Dept 2000].) Furthermore, “[t]he general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations” (Walsh v Andorn, 33 NY2d 503, 507 [1974].) The Justice Hom DJ Order clearly holds that Parisien has no right to recover for the claims asserted here.

v. Law of the Case

Parisien further argues that Judge Moyne’s 2021 decision and order is the law of the case and that, consequently, Defendant is prohibited from ever again arguing that Plaintiff’s claims are barred by the doctrines of res judicata and collateral estoppel. The Court disagrees.

The “law of the case doctrine operates to foreclose re-examination . . . absent a showing of subsequent evidence or change of law” (J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809, 809 [2d Dept 2007].) Importantly, the law of the case doctrine is secondary to res judicata and collateral estoppel: “Unlike res judicata (claim preclusion) and collateral estoppel (issue preclusion), which apply rigid rules of limitation after judgment and are codified, ‘law of the case’ is a judicially crafted policy that expresses the practice of courts generally to refuse to reopen what has been decided; as such, it is necessarily ‘amorphous’ in that it directs a court’s [*4]discretion, but does not restrict its authority.” (People v Evans, 94 NY2d 499, 500 [2000]; see also Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218 [2d Dept 2009] [“while the law of the case doctrine is intended to foster orderly convenience, it is not an absolute mandate . . .”].)

Defendant’s motion here is based on a New York County Supreme Court decision from an action separate and apart from the Supreme Court action and decision reviewed by Judge Moyne. The Justice Hom DJ Order explicitly addresses the parties and claims presented here. The Court finds that Judge Moyne’s earlier decision in this matter does not prevent the otherwise applicable principles of res judicata and collateral estoppel from applying generally. Accordingly, Plaintiff’s argument here fails.

Conclusion

For the foregoing reasons, Defendant’s motion is GRANTED.

Accordingly, it is ordered that judgment is granted in favor of Defendant and against Plaintiff.This case is hereby dismissed.

This constitutes the Decision and Order of the Court.

Date: August 7, 2026

Brooklyn, NY

Hon. Javier Ortiz, JCC