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November 5, 2026

Hereford Ins. Co. v Orthopaedics, Spine & Sports Medicine LLP (2026 NY Slip Op 06524)

https://www.beynensonlaw.com/case-law/hereford-ins-co-v-orthopaedics-spine-sports-medicine-llp-2026-ny-slip-op-06524/

Court
Appellate Division, First Department
Decided
November 5, 2026
Citation
2026 NY Slip Op 06524
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Declaratory judgment, res judicata
Legal questions
Effect of insurer's declaratory judgment (see the maps)
Cite as
Hereford Ins. Co. v Orthopaedics, Spine & Sports Medicine LLP, 2026 NY Slip Op 06524 (1st Dept 2026)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's coverage claims were barred by res judicata despite an arbitration award predating the default declaratory judgment. The Appellate Division, First Department, reversed the order, granted the insurer's summary judgment motion dismissing those claims, and denied the provider's cross motion to dismiss the complaint. Res judicata can apply to default judgments and bars claims raised or required to be raised in an earlier suit between the same parties. Both actions concerned disclaimers based on injuries and treatment unrelated to a covered event and failure to subscribe EUO transcripts. The award's issuance and affirmance before the default judgment did not defeat preclusion because the insurer commenced the prior declaratory judgment action nearly two months before the provider sought arbitration.

Reported in New York Official Reports at Hereford Ins. Co. v Orthopaedics, Spine & Sports Medicine LLP (2026 NY Slip Op 06524)

Hereford Ins. Co. v Orthopaedics, Spine & Sports Medicine LLP
2026 NY Slip Op 06524
Decided on November 5, 2026
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.


Hereford Insurance Company, Plaintiff-Appellant,

v

Orthopaedics, Spine & Sports Medicine LLP, Defendant-Respondent.

Decided and Entered: November 05, 2026

Index No. 156521/22|Appeal No. 7448|Case No. 2025-08059|

Before: Kapnick, J.P., Rosado, O’Neill Levy, Parker-Raso, JJ.

Goldberg, Miller & Rubin, P.C., New York (Harlan R. Schreiber of counsel), for appellant.

The Odierno Law Firm, P.C., Melville (Kevin T. Griffiths of counsel), for respondent.-

[*1]

Order, Supreme Court, New York County (David B. Cohen, J.), entered October 16, 2025, which denied plaintiff’s motion for summary judgment dismissing defendant’s coverage claims on the ground that the claims were barred by res judicata and collateral estoppel, or, in the alternative, for judgment against defendant, and granted defendant’s cross-motion to dismiss the complaint, unanimously reversed, on the law, with costs, plaintiff’s motion to dismiss the coverage claims granted on res judicata grounds, and defendant’s cross-motion denied.

In a separate prior action against defendant medical provider and others, plaintiff sought a declaration that there was no coverage for claims arising from injuries allegedly sustained in a collision involving its insured motor vehicle. Defendant did not appear in that prior action, but on June 29, 2021, almost two months after the action was commenced, filed a separate claim for arbitration. Meanwhile, on May 25, 2022, plaintiff moved for a default judgment in the prior action. Defendant eventually was awarded more than $14,000 in the arbitration, and that award was affirmed on July 8, 2022. Approximately two weeks later, on July 24, 2022, plaintiff commenced the action underlying this appeal. In October 2022, Supreme Court entered a default judgment in plaintiff’s favor in the prior action, declaring that there was no coverage for defendant’s claims. Defendant moved to vacate that default judgment, the motion was denied, and defendant did not appeal from the resulting order.

Supreme Court should have dismissed defendant’s coverage claims as precluded. The court mistakenly analyzed plaintiff’s motion under the framework of collateral estoppel, which generally does not apply to default judgments (Kanat v Ochsner, 301 AD2d 456, 458 [1st Dept 2003]). However, res judicata, which can apply to default judgments (Robbins v Growney, 229 AD2d 356, 357 [1st Dept 1996]), bars claims that were or should have been raised in an earlier suit involving the same parties (see Rojas v Romanoff, 186 AD3d 103, 107 [1st Dept 2020]). As a result, res judicata acts to bar defendant’s claims because both this action and the prior action involve plaintiff and defendant as adverse parties and raise the same issues, namely, whether plaintiff properly disclaimed coverage to defendant on the grounds that the alleged injuries and treatment were unrelated to a covered event, and that the treated individuals failed to subscribe to their EUO transcripts and therefore failed to fulfill a condition precedent to coverage.

[*2]

We reject defendant’s argument that the default judgment cannot have preclusive effect because it was issued after the arbitration award was issued and affirmed. Plaintiff filed the prior declaratory judgment action nearly two months before defendant filed its claim for arbitration (see Ventur Group, LLC v Finnerty, 80 AD3d 474, 475 [1st Dept 2011]; Hereford Ins. Co. v Iconic Wellness Surgical Servs., LLC, 63 Misc 3d 154[A], 2019 NY Slip Op. 50801[U], *1 [App Term 1st Dept 2019]).

In view of the foregoing, the remaining arguments are academic.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 5, 2026

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Effect of insurer's declaratory judgment

Open the full map

Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?

This decision: The DJ is given preclusive effect and bars every claim in the action that the court considered

Held the default declaratory judgment of no coverage barred the provider's arbitration claims by res judicata, although entered after the award was affirmed, because the same parties and issues were involved and the declaratory action preceded the arbitration.

  • Appellate DivisionApp Div 1
  • Appellate TermApp Term 5
  • Trial courtsTrial 5
2026, Appellate Division: 1 decision (1 Barred by DJ)2022, Appellate Term: 1 decision (1 Barred by DJ)2019, Appellate Term: 1 decision (1 DJ does not reach)2013, Appellate Term: 1 decision (1 Not bound: parties)2010, Appellate Term: 1 decision (1 Barred by DJ)2015, Appellate Term: 1 decision (1 Not bound: parties)2023, Trial courts: 1 decision (1 Barred by DJ)2020, Trial courts: 3 decisions (3 Not bound: parties)2018, Trial courts: 1 decision (1 Stayed pending DJ)This decision
2010201520202025
Barred by DJNot bound: partiesDJ does not reachStayed pending DJThis decision

Of the 11 decisions on this question in the First Department courts and the Court of Appeals, 4 (this one included) are in the same category.

Similar decisions

  • Hereford Ins. Co. v Interdependent Acupuncture PLLC (2025 NY Slip Op 00021)The injured claimants failed to establish a reasonable excuse for defaulting in the insurer's no-fault declaratory judgment action.
  • St. Mark’s Med. Health Care, PLLC v 21st Century Ins. Co. (2020 NY Slip Op 50851(U))An unvacated default declaratory judgment can bar a provider's later no-fault action under res judicata.
  • Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50295(U))The provider's claims were barred by res judicata because a prior default declaratory judgment adjudicated the same bills.
  • Ahava Med. Diagnostic, P.C. v Hertz Co. (2022 NY Slip Op 50298(U))A prior no-coverage declaratory judgment retains its binding effect even if notice of entry is served after a provider's default judgment.
  • Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.
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