August 20, 2014

Great Health Care Chiropractic, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51324(U))

https://www.beynensonlaw.com/case-law/great-health-care-chiropractic-p-c-v-american-tr-ins-co-2014-ny-slipop-51324u/

Court: Appellate Term, Second Department
Decided: August 20, 2014
Citation: 2014 NY Slip Op 51324(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 4 later decisions (see Cited by)
Issues: Declaratory judgment, res judicata Provider's prima facie case Discovery and procedure
Legal questions: Claimant's prima facie case on motions · Effect of insurer's declaratory judgment (see the maps)

Cite as

Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 2014 NY Slip Op 51324(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 action was barred by a declaratory judgment relieving the insurer of liability for claims arising from the accident. The Supreme Court, New York County, granted that declaration based on the assignor's EUO nonappearance. A provider judgment would impair rights established by the declaration, making res judicata applicable despite the absence of service with notice of entry. The provider also failed to establish overdue payment or a timely denial deficient as a matter of law under Insurance Law § 5106 (a). Consideration of the insurer's late supplemental opposition was proper given the justified delay and lack of demonstrated prejudice. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal with prejudice upon searching the record.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51324(U))

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

Great Health Care Chiropractic, P.C. as Assignee of KAREEM LINDSAY, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 28, 2013. The order denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.

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

Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and

defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.

After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion

for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.

Moreover, the Civil Court properly determined that the 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 this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]). While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cf. Mosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 20, 2014

Legal questions (2)

Questions 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.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's moving papers failed to show that the insurer did not pay or deny within 30 days or that a timely denial was conclusory, vague or without merit, so its prima facie case failed.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Effect of insurer's declaratory judgment

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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 provider's pending action barred by res judicata because a judgment for it would impair rights established by the insurer's Supreme Court declaratory judgment, and failure to serve notice of entry was not fatal.

Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itCited or followed

Of the 164 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
EBM Med. Health Care, P.C. v Republic W. Ins. (2012 NY Slip Op 22300)An unvacated default declaratory judgment has res judicata effect in a provider's pending no-fault action.
Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50233(U))An unvacated default declaratory order barring no-fault benefits is a final determination that can preclude a provider's action under res judicata.
SZ Med., P.C. v Erie Ins. Co. (2009 NY Slip Op 51221(U))The providers' no-fault action was barred by res judicata because a prior declaratory judgment resolved coverage for the same accident.
All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am. (2014 NY Slip Op 24161) FollowedAn order granting summary judgment binds judges of coordinate jurisdiction without service of notice of entry.

Cited by

A label shows how the later decision treated this one.

Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co. (2016 NY Slip Op 51072(U)) FollowedAn entered default declaratory judgment barring no-fault coverage has preclusive effect even without service of notice of entry.
Active Care Med. Supply Corp. v American Commerce Ins. Co. (2016 NY Slip Op 51813(U)) FollowedAn unvacated default declaratory judgment order can bar a provider's no-fault action under res judicata without a notice of entry.
Omphil Care, Inc. v Hertz Co. (2015 NY Slip Op 51052(U)) FollowedA default declaration of no-fault nonliability has res judicata effect even before service with notice of entry.
Ahava Med. Diagnostic, P.C. v Hertz Co. (2022 NY Slip Op 50298(U)) FollowedA prior no-coverage declaratory judgment retains its binding effect even if notice of entry is served after a provider's default judgment.

Similar decisions

Healthway Med. Care, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51786(U))The provider's claims were barred by res judicata because a prior declaration resolved coverage for the same accident between the same parties.
Lms Acupuncture, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 50198(U))The provider's benefits action was barred by a default declaratory judgment resolving coverage for the same accident under res judicata.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
Greenway Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50039(U))A default declaratory order that has not been vacated may bar a provider's no-fault action under res judicata.
Vital Meridian Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51007(U))An unvacated default order declaring noncoverage is a conclusive final determination that can bar a provider's action under res judicata.