February 9, 2012

Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50233(U))

https://www.beynensonlaw.com/case-law/ava-acupuncture-p-c-v-ny-cent-mut-fire-ins-co-2012-ny-slip-op50233u/

Court: Appellate Term, Second Department
Decided: February 9, 2012
Citation: 2012 NY Slip Op 50233(U) · 34 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 18 later decisions (see Cited by)
Issues: Declaratory judgment, res judicata Discovery and procedure
Legal questions: Effect of insurer's declaratory judgment (see the maps)

Cite as

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 Dept, 2d, 11th & 13th Jud Dists 2012)

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.

An unvacated default declaratory order barring no-fault benefits is a final determination that can preclude a provider's action under res judicata. After the provider commenced this action, the insurer obtained an order in Supreme Court, Queens County, declaring no present or future obligation to furnish benefits to the named providers and assignors, including those in this action. A contrary judgment could destroy or impair the rights established by that order. Its entry on default did not defeat finality or preclusion. The Appellate Term, Second Department, affirmed the order granting the insurer's cross motion for summary judgment dismissing the complaint and denying as moot the provider's motion to compel discovery or strike the answer.

Reported in New York Official Reports at Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50233(U))

[*1]

Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50233(U) [34 Misc 3d 149(A)]

Decided on February 9, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2010-754 K C.

Ava Acupuncture, P.C. as Assignee of MARIE POKIE, FAUSTO ALVAREZ, MICHAEL MONOPREMIER, OMESH PERSAUD and JOSE TURCIOS, Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 28, 2009. The order denied plaintiff’s motion to, among other things, compel certain discovery and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

After plaintiff had commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignors, defendant commenced a declaratory judgment action in Supreme Court, Queens County, against various medical providers and their assignors, including plaintiff and its assignors herein. By order dated October 26, 2007, the Supreme Court granted defendant’s motion for entry of a declaratory judgment, on default, declaring that defendant had “no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage” to the parties named as defendants in the declaratory judgment action. In December 2007, plaintiff herein moved to compel certain discovery from defendant or, in the alternative, to strike defendant’s answer. Defendant cross-moved for summary judgment [*2]dismissing the complaint, contending that this action was barred by virtue of the October 26, 2007 order of the Supreme Court. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s contention, the Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Furthermore, based on the Supreme Court’s order, plaintiff’s motion to compel discovery or, in the alternative, strike defendant’s answer was rendered moot, and, thus, properly denied. Plaintiff’s remaining contentions lack merit.

Accordingly, the order of the Civil Court is affirmed.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: February 09, 2012

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 unvacated default order declaring no present or future obligation to pay benefits to the provider and its assignors was a conclusive final determination barring the pending action by res judicata.

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. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co. (2010 NY Slip Op 52039(U)) FollowedAn unvacated default declaratory judgment has res judicata effect against a provider's claims arising from the same accident.

Cited by (30)

A label shows how the later decision treated this one.

EBM Med. Health Care, P.C. v Republic W. Ins. (2012 NY Slip Op 22300) FollowedAn unvacated default declaratory judgment has res judicata effect in a provider's pending no-fault action.
Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co. (2014 NY Slip Op 50052(U)) FollowedThe provider's no-fault action was barred by res judicata because a default declaratory judgment denied its right to benefits.
Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. (2015 NY Slip Op 50222(U)) FollowedA default declaratory judgment conclusively determining no obligation to pay no-fault benefits bars a contrary recovery under res judicata.
Renelique v State-Wide Ins. Co. (2016 NY Slip Op 50095(U)) FollowedA default declaratory judgment precludes a no-fault recovery that would impair the rights established by that judgment.
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.
Great Health Care Chiropractic, P.C. v Progressive Ins. Co. (2015 NY Slip Op 51077(U)) FollowedThe provider's no-fault action was barred by res judicata under an unvacated default declaratory judgment denying benefits from the accident.
IMA Acupuncture, P.C. v Hertz Co. (2016 NY Slip Op 50258(U)) FollowedThe provider's no-fault action was barred by a default declaratory judgment establishing that the insurer owed no payment for the accident.
Sutter Med. Care P.C. v Progressive Cas. Ins. Co. (2013 NY Slip Op 50117(U)) FollowedA default declaratory judgment bars relitigation of the same no-fault claims between the same parties.
Flatlands Med., P.C. v Kemper Ins. Co. (2014 NY Slip Op 50419(U)) FollowedThe provider's claims were barred by a default declaratory judgment denying its entitlement to benefits from the same accident.
Lms Acupuncture, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 50198(U)) FollowedThe provider's benefits action was barred by a default declaratory judgment resolving coverage for the same accident under res judicata.

Show all 30 citing decisions

Similar decisions

Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co. (2007 NY Slip Op 50358(U))A notice of trial should be vacated when the certificate of readiness erroneously states that discovery was completed or waived.
AVA Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51756(U))The provider's failure to answer discovery or oppose the insurer's motion supported striking its complaint under CPLR 3126 (3).
AVA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52256(U))The insurer failed to prove mailing of IME requests and therefore failed to establish tolling or timely denial of the provider's claims.