October 16, 2012

Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co. (2012 NY Slip Op 22301)

https://www.beynensonlaw.com/case-law/smooth-dental-p-l-l-c-v-preferred-mut-ins-co-2012-ny-slip-op-22301/

Court: Appellate Term, Second Department
Decided: October 16, 2012
Citation: 2012 NY Slip Op 22301 · 37 Misc 3d 67
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Declaratory judgment, res judicata
Legal questions: Effect of insurer's declaratory judgment (see the maps)

Cite as

Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 (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.

The provider was not bound by a declaratory judgment against its assignor because the assignment preceded that action. The insurer obtained a declaration that it owed no coverage based on the assignor's alleged misrepresentation of residence, then sought summary judgment dismissing the provider's dental-services claim. The provider had neither been named nor served in the declaratory judgment action and was not then in privity with the assignor. It otherwise lacked a full and fair opportunity to defend its interests. The Appellate Term, Second Department, affirmed the denial of the insurer's motion, following Gramatan Home Invs. Corp. v Lopez and Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co.

Reported in New York Official Reports at Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co. (2012 NY Slip Op 22301)

Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co.

2012 NY Slip Op 22301 [37 Misc 3d 67]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 19, 2012

[*1]

Smooth Dental, P.L.L.C., as Assignee of Oba Connor, Respondent,
v
Preferred Mutual Insurance Company, Appellant.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 16, 2012

APPEARANCES OF COUNSEL

Methfessel & Werbel, New York City (Frank J. Kennan of counsel), for appellant. Law Offices of Damin J. Toell, P.C., Brooklyn (Damin J. Toell of counsel), for respondent.

{**37 Misc 3d at 68} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits for dental services provided to plaintiff’s assignor as a result of injuries sustained in an automobile accident, the record indicates that, subsequent to the assignment of benefits from plaintiff’s assignor to plaintiff and the provision of dental services by plaintiff to its assignor, defendant Preferred Mutual Insurance Company commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff’s assignor based upon his alleged misrepresentation of his residence when applying for insurance. By order dated October 25, 2004, the Supreme Court granted Preferred’s motion for summary judgment in the declaratory judgment action, and declared that Preferred was “not obligated to provide no-fault benefits or defend any claims for bodily injury or property damage on [its] policy issued to [Oba Connor, plaintiff’s assignor].” Several years later, plaintiff commenced the instant no-fault action, and Preferred moved for summary judgment dismissing the complaint, contending that this action was barred by virtue of the Supreme Court’s order. The Civil Court denied defendant’s motion.

Plaintiff herein was neither named nor served in the declaratory judgment action nor, at the time, was it in privity with its assignor, who was a named party in that action, as the assignment of benefits had been executed before the declaratory judgment action had been commenced, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in that proceeding. Consequently, the instant action is not subject to dismissal by virtue of the order in the declaratory judgment action (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept,{**37 Misc 3d at 69} 2d, 11th & 13th Jud Dists 2010]). As a result, Preferred’s [*2]motion for summary judgment was properly denied.

Accordingly, the order of the Civil Court is affirmed.

Weston, J.P., Rios and Solomon, JJ., concur.

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: No preclusion because the claimant (or insurer) was not a party or privy to the DJ

Held the declaration of no coverage against the assignor did not bar the provider's action because the provider was neither named nor served and the assignment predated the declaratory action.

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, 20 (this one included) are in the same category.

Cited in this decision

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

Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 20130) FollowedThe provider was not collaterally estopped by default declaratory judgments in actions where it was neither a party nor in privity.

Cited by

A label shows how the later decision treated this one.

J.K.M. Med. Care, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 26424) FollowedThe provider was not bound by a coverage declaration against its assignor because the assignment preceded the proceeding and the provider was absent.
Queens Arthroscopy & Sports Medicine v Unitrin Direct Ins. Co (2013 NY Slip Op 52021(U)) FollowedThe provider was not bound by its assignor's coverage arbitration because the assignment preceded that proceeding and the provider was not a party.
Professional Health Imaging, P.C. v Old Republic Ins. Co. (2014 NY Slip Op 50200(U))The provider's no-fault claim was not barred by collateral estoppel based on dismissal of its assignor's federal personal injury action.
Stracar Med. Servs. v Nationwide Mut. Ins. Co. (2015 NY Slip Op 51761(U))The provider was not bound by a Virginia rescission order because it was not a party and privity with the assignor was unproved.

Similar decisions

Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))The provider's challenge to proof of denial mailing failed, and its remaining argument was raised for the first time on appeal.
Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))The provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal.
Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))The insurer's summary judgment cross motion dismissing the complaint for the assignor's IME nonappearance was granted and affirmed.
Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51897(U))A declaratory judgment denying a provider's accident-related no-fault entitlement has preclusive effect even if entered on default.
Great Health Care Chiropractic, P.C. v Progressive Ins. Co. (2015 NY Slip Op 51077(U))The provider's no-fault action was barred by res judicata under an unvacated default declaratory judgment denying benefits from the accident.