Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Talia Beard of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 27, 2017. The order granted defendant’s motion to vacate a judgment of that court entered March 8, 2016 pursuant to an order of that court (Devin P. Cohen, J.) entered February 9, 2016 granting plaintiff’s prior unopposed motion for summary judgment, and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint.

ORDERED that the order entered November 27, 2017 is reversed, with $30 costs, and defendant’s motion to vacate the judgment entered March 8, 2016 and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint is denied.

Plaintiff Bronx Medical Diagnostic, P.C. (Bronx Medical) commenced this action in 2015 to recover first-party no-fault benefits for medical services it had provided to its assignor, Monique Diaz, as a result of a motor vehicle accident which had occurred on October 8, 2014. After issue had been joined, Bronx Medical moved in 2015 for summary judgment, and defendant Global Liberty Ins. of NY (Global Liberty) failed to submit any opposition. By order entered February 9, 2016, the Civil Court (Devin P. Cohen, J.) granted the motion.

Prior to the entry of the Civil Court’s February 9, 2016 order, Global Liberty had commenced a declaratory judgment action in the Supreme Court, Bronx County, against Monique Diaz and Bronx Medical, among others, seeking a declaration that there was no [*2]coverage on the part of Global Liberty as a result of the October 8, 2014 accident. A judgment was subsequently entered in the Civil Court on March 8, 2016, pursuant to its February 9, 2016 order, awarding Bronx Medical the principal sum of $1,758.40. Thereafter, by order dated May 20, 2016, the Supreme Court granted a motion by Global Liberty and ordered that “all arbitrations, civil lawsuits, judgments and other proceedings seeking no-fault benefits regarding a motor vehicle accident involving Monique Diaz . . . which occurred on 10/8/14 that have been brought or may be brought by [Diaz and providers including Bronx Medical] are hereby permanently stayed and any judgments are vacated.”

On the basis of the May 20, 2016 Supreme Court order, Global Liberty moved in the Civil Court to vacate the March 8, 2016 judgment and, upon such vacatur, to deny plaintiff’s prior unopposed motion and dismiss the complaint. Bronx Medical opposed the motion and appeals from an order of the Civil Court (Michael Gerstein, J.) entered November 27, 2017 granting the motion.

Reliance by the Civil Court and defendant upon the part of the Supreme Court’s order stating that “any judgments are vacated” is misplaced, as, “in general, relief from a judgment may only be sought from the court which rendered it” (Chestnut Hill Real Estate v Contractors Cas. & Sur. Co., 280 AD2d 446, 446 [2001]; see Commissioner of Labor of State of NY v Hinman, 103 AD2d 886 [1984]). Furthermore, the record before us indicates that, before the Supreme Court issued its May 20, 2016 order, which, among other things, restrained the prosecution of any pending actions, the Civil Court, by order entered February 9, 2016, had granted Bronx Medical’s motion for summary judgment, thus completing the court’s judicial function (see Vogel v Edwards, 283 NY 118 [1940]; SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51267[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, within days after the Civil Court granted Bronx Medical summary judgment, Bronx Medical submitted its proposed judgment to the Civil Court. No action was taken by the parties after the May 20, 2016 Supreme Court order.^[FN1] The entry of the judgment in the Civil Court on March 8, 2016, pursuant to the February 9, 2016 order, was simply a ministerial act of the clerk (see SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51267[U]; see e.g. Aetna Cas. & Sur. Co. v Whitestone Gen. Hosp., 142 Misc 2d 67 [Sup Ct, NY County 1988]), and thus no violation of the Supreme Court’s May 20, 2016 order restraining the prosecution of the action occurred (see SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d [*3]142[A], 2019 NY Slip Op 51267[U]). Consequently, Global Liberty’s motion to vacate the March 8, 2016 Civil Court judgment based on the Supreme Court’s May 20, 2016 order should have been denied.

Accordingly, the order is reversed and defendant’s motion to vacate the March 8, 2016 default judgment and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint is denied.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: November 15, 2019

Footnotes

Footnote 1:We note that we are aware of the Supreme Court’s February 11, 2016 order to show cause which contained a stay of Bronx Medical in this action, among others. However, as defendant made its motion to vacate the judgment in the Civil Court on the basis of the Supreme Court’s May 20, 2016 order, we do not consider the February 11, 2016 order. In any event, the record is devoid of any indication when the Supreme Court’s February 11, 2016 order was served on Bronx Medical or exactly when Bronx Medical applied for judgment in the Civil Court.

[*1]

Civil Court of the City of New York, Richmond County, November 12, 2019

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Offices of Gabriel & Shapiro, Wantagh, for plaintiff.

{**66 Misc 3d at 420}This action for first-party no-fault benefits arises out of a motor vehicle accident that occurred on August 2, 2014, involving plaintiff’s assignor, Chetram Paraboo. Due to the injuries that he sustained in the accident, plaintiff’s assignor received treatment at Krasner Chiropractic, P.C. (hereinafter, plaintiff). Plaintiff commenced this action seeking to recover $1,754.62 for services that were performed between August 4, 2014, and January 15, 2015, plus statutory interest and attorney’s fees.

Defendant IDS Property & Casualty Insurance Company now moves for summary judgment dismissing the complaint pursuant to CPLR 3212. Defendant argues it is entitled to summary judgment as the subject occurrence was not a covered event as it was an intentional act and plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim. Alternatively, defendant argues that it is entitled to summary judgment based upon plaintiff provider’s failure to appear for duly scheduled examinations under oath (EUOs) or partial summary judgment as to defendant’s prima facie case.

Plaintiff cross-moves for partial summary judgment as to its own prima facie case and opposes defendant’s motion. In response, defendant has submitted opposition to plaintiff’s cross motion.

In support of its motion, defendant submits the affidavit of Michael A. Callinan, Esq., of Bruno, Gerbino & Soriano, LLP, and the affidavits of senior special investigator James Glampe and litigation examiner Carrie Erickson. Defendant also submits copies of the police accident report relating to the subject occurrence and the EUO transcripts of Liloutie Sydnor (nonparty owner of the vehicle operated by nonparty Lisa Brown) taken on October 13, 2014; of plaintiff’s assignor, Chetram Paraboo, taken on November 24, 2014; of Lisa Brown (nonparty operator of the vehicle in which plaintiff’s assignor was a passenger) taken on December 2, 2014; and of Glenis Brown (nonparty husband of Liloutie Sydnor and the father of operator Lisa Brown) taken on March 23, 2015.

In his affidavit, Mr. Glampe states that the subject occurrence was not a covered event in that it was an intentional or staged act. He selectively provides a recitation of alleged discrepancies in the testimony of each of the above stated EUO witnesses regarding the subject occurrence. He also claims that the police accident report relating to the subject occurrence {**66 Misc 3d at 421}and a witness stated that the driver of the host vehicle, nonparty Lisa Brown, was attempting to make an extremely dangerous and illegal right turn.^[FN1]

In his affidavit, Mr. Callinan states that he is a partner with the firm of Bruno, Gerbino & Soriano, LLP, attorneys for defendant. In that capacity, he is personally responsible for the day-to-day handling of the within matter and all claims referred to his firm by defendant and its parent company Ameriprise Financial, Inc. Mr. Callinan sets forth the policies and procedures relating to the scheduling, confirmation and taking of EUOs in the ordinary course of business for the within matter. According to Mr. Callinan, in an effort to verify the medical bills for treatment rendered an EUO of plaintiff provider was scheduled for January 19, 2015, and February 27, 2015 (see defendant’s moving papers at exhibits S, T, X). The EUO request, dated December 19, 2014,^[FN2] scheduled the EUO of plaintiff provider for January 19, 2015. An amended EUO request, dated December 24, 2014,^[FN3] was sent requesting the EUO for the same date. On January 15, 2015, a letter was received from plaintiff’s counsel advising that plaintiff provider would not appear at the scheduled EUO since the claims had been denied. In response, defendant sent a letter acknowledging plaintiff’s letter, advising that the previously denied claims were being reconsidered and requesting alternate dates for the EUO. On January 19, 2015, plaintiff provider failed to appear for the EUO, and defendant proceeded to place a statement on the record. A second EUO request letter, dated January 22,{**66 Misc 3d at 422} 2015,^[FN4] scheduled the EUO for February 27, 2015. On or about January 23, 2015, and February 2, 2015, correspondence was exchanged between the attorneys as to defendant’s previously issued denials and the status of plaintiff provider’s claims in light of Lisa Brown’s request to be provided with another opportunity to appear for her EUO. By letter, dated February 25, 2015,^[FN5] defendant reiterated to plaintiff provider’s counsel that the previously denied claims were being reconsidered and to provide dates upon which plaintiff provider would be available to appear for an EUO. On February 27, 2015, plaintiff provider failed to appear, and a statement was placed on the record. Mr. Callinan was present in his office on January 19, 2015, and February 27, 2015. If plaintiff provider had appeared for its EUO on either day, he personally would have conducted said examination.

In her affidavit, Ms. Erickson initially states that an investigation of the subject occurrence determined that it was a staged intentional loss rather than an accident. She also asserts that plaintiff provider failed to appear for three EUOs^[FN6] that were needed to determine the facts of the alleged loss and{**66 Misc 3d at 423} to verify that all treatment and medical supplies billed on behalf of plaintiff’s assignor were received. She further asserts that each of the five claimed bills was denied within 30 days of receipt or within 30 days of plaintiff’s failure to appear for an EUO.^[FN7] Ms. Erickson also sets forth the policies and procedures utilized in the regular course of business for the creation and maintenance of delay letters with the explanation of benefits and the denial of claim forms—including those relating to the within matter (see defendant’s moving papers at exhibits D, E, F, G, H, I, J, L). She also sets forth the policies and procedures by which mail is received and sent from defendant’s offices and the methods by which the dates of same are recorded in the appropriate claim files.

In opposition to defendant’s motion and in support of its cross motion, plaintiff argues that defendant has failed to demonstrate that the subject incident was not a covered event; defendant’s denials are late and invalid as defendant failed to establish that it properly sought the EUOs; defendant deliberately defaulted plaintiff at the EUOs; defendant never formally rescinded its earlier denials; and there is no authority which would allow defendant to belatedly assert a new defense or issue verification requests beyond the statutory deadline. Plaintiff also argues that the testimony contained within the above stated affidavit of Ms. Erickson and the NF-3s annexed{**66 Misc 3d at 424} to defendant’s moving papers as exhibit C clearly demonstrate and establish plaintiff’s prima facie case.

Defendant opposes the within cross motion arguing that plaintiff has failed to establish that defendant failed to timely deny any of the claims at issue or prove its prima facie case that the prescribed statutory billing forms had been mailed and received, and that the payment of the no-fault benefits was overdue.

The portion of defendant’s motion seeking summary judgment on the basis that the subject occurrence was not a covered event because it was an intentional act and that plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim is denied. Defendant has failed to make a prima facie showing of entitlement to summary judgment. While assorted portions of the EUO testimony offered by the above stated affiants do conflict, said conflicts serve to create, rather than remove, issues of fact regarding how the subject occurrence took place. Furthermore, even if the above stated police accident report were in admissible form, which it is not as it is not certified as a business record pursuant to CPLR 4518, the officer did not witness or perform any investigation into the occurrence.

The portion of defendant’s motion seeking summary judgment on the basis that plaintiff failed to appear for a duly scheduled EUO is also denied and the defense of EUO no-show is precluded. As noted above, defendant initially requested plaintiff provider’s appearance at an EUO after it had received and denied plaintiff provider’s first three bills on the basis that the subject occurrence was not a covered event and that plaintiff’s assignor, Chetram Paraboo, had failed to appear for an EUO. Defendant’s request for plaintiff provider’s appearance at an EUO was sent after the denial of the first three bills and prior to defendant’s receipt of bills 4 and 5. At the time of the initial EUO request of plaintiff provider, there were no outstanding bills or claims.

This is a case of first impression wherein the defendant, after issuing a denial for one or more timely submitted claims, without notice to the plaintiff, decides to “reconsider” said claims while demanding that plaintiff provider appear for an EUO relating to the previously denied claims. The legislature established specific and uniform guidelines relating to the time and way no-fault claims are submitted, reviewed and denied. In Dermatossian v New York City Tr. Auth. (67 NY2d 219, 225 [1986]), the Court of Appeals stated that{**66 Misc 3d at 425}

“[t]o implement this legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations (see,11 NYCRR 65.15) are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays. Permitting evidence in a personal injury lawsuit of the fact that the defendant (if self-insured) or its insurer had paid the plaintiff the statutorily obligated first-party benefits would unquestionably frustrate the very purpose of the No-Fault Law by discouraging insurers from making prompt and voluntary payment of claims.”

There is no provision or exception in the no-fault statutes that provides for the defendant to unilaterally “review” cases again. This would obviate the intent and purpose of the No-Fault Law and create a dangerous precedent that could be used by defendants to improperly request additional verification such as EUOs or independent medical examinations.

Defendant is bound by its denials of November 17, 2014, and November 25, 2014 (see exhibits E, F, H of defendant’s moving papers), thereby making any EUO request of plaintiff provider untimely. Accordingly, defendant’s motion for summary judgment is denied and plaintiff’s cross motion is granted to the extent that plaintiff has demonstrated its prima facie case. The sole issue for trial is whether this is a covered event due to misrepresentations of the facts or it being a staged accident.

The remaining contentions of the parties are denied as moot.

Footnotes

Footnote 1:The court is given pause by what appears to be an attempt by defendant, through Mr. Glampe, to mislead this court. Defendant has clearly cherry-picked portions of the police accident report (see exhibit M of defendant’s moving papers) entitled “Accident Description/Officer’s Notes.” A whole reading of the section finds that it actually states:

“At t/p/o driver #1 states while driving W/B N. Conduit third lane/right lane driver #2 went from the middle lane attempted to make illegal right on Dumont causing her vehicle to collide with driver #2; Driver #2 states while driving straight on N. Conduit driver #1 rear ended her causing collision. No injuries; witness added to report.”

The police officer did not witness the incident and there are no affidavits from the driver of vehicle number 1 or the listed witness.

Footnote 3:Which addresses EIP/Claimant: Liloutie Sydnor and Lisa Brown (see exhibit T of defendant’s moving papers).

Footnote 4:Which addresses EIP/Claimant: Liloutie Sydnor & Lisa Brown (see exhibit X of defendant’s moving papers).

Footnote 5:Responding to a letter from plaintiff’s counsel that was received on February 24, 2015. Said letter requested proof that the previous denials had been properly rescinded and advised that plaintiff would not be available to appear for an EUO on February 27, 2015.

Footnote 6:Scheduling letters annexed to defendant’s moving papers as exhibits S, T and X only address EUOs scheduled for January 19, 2015, and February 27, 2015. Bills 1-3 were denied by defendant prior to the issuance of defendant’s first letter, dated December 19, 2014, requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibit S). Defendant’s second EUO letter, dated December 24, 2014 (prior to defendant’s receipt of bills 4 and 5), informed plaintiff provider’s attorney for the first time that defendant had elected to reconsider plaintiff’s previously submitted claims based on the request of Lisa Brown and plaintiff’s assignor Chetram Paraboo for an additional opportunity to appear at an EUO (see defendant’s moving papers at exhibit T). Said letter solely addressed the first three bills that had previously been submitted and were denied prior to defendant’s first EUO letter requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibits S, T). Defendant’s third letter, dated January 15, 2015, confirms receipt of a letter from plaintiff’s counsel advising that plaintiff would not appear at the EUO scheduled for January 19, 2015, and advised that based on the request of Lisa Brown to appear at an EUO, the claims for the first three bills were reopened and would be considered for payment (see defendant’s moving papers at exhibits U, V). As such, defendant would reschedule plaintiff’s EUO one final time (see defendant’s moving papers at exhibit V). Defendant’s letter of January 22, 2015 (see defendant’s moving papers at exhibit X), attempts to relate back to defendant’s original request of December 24, 2014 (which requested an EUO relating to the bills that had already been denied), as opposed to any new bills (i.e., bill 4 or 5) that may have been received. In addition, despite multiple requests from plaintiff’s counsel, defendant never advised plaintiff provider whether the previously served denials were formerly rescinded and never requested that plaintiff appear for EUOs relating to bills 4 or 5 as each succeeding letter from the defendant related to the initial EUO letter (see defendant’s moving papers at exhibits S, T, U, V, X, Y, Z, AA, BB).

Footnote 7:Bill 1 for date(s) of service (DOS) August 4, 2014-September 3, 2014, was received on September 22, 2014, delayed on October 8, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 2 for DOS September 4, 2014-September 25, 2014, was received on October 6, 2014, delayed on October 20, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 3 for DOS October 10, 2014, was received on November 17, 2014, denied on November 25, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 4 for DOS November 20, 2014-December 17, 2014, was received on December 29, 2014, allegedly delayed on January 12, 2015, and February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015; bill 5 for DOS December 30, 2014-January 15, 2015, was received on February 5, 2015, allegedly delayed on February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015 (see affidavit of Carrie Erickson ¶ 9; defendant’s moving papers at exhibits D-L).

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Decided on November 8, 2019

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

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 2, 2017. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2010. Over five years later, in August 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On or about December 16, 2016, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial.

Once a 90-day demand is received by a plaintiff in a Civil Court action, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Geico Ins. Co., 47 Misc 3d 142[A], 2015 NY Slip Op 50674[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Since plaintiff failed to do either of these, it was required, in opposition to defendant’s motion to dismiss, to establish a [*2]justifiable excuse for its delay in properly responding to the 90-day demand, and the existence of a meritorious cause of action (see Felix, 52 AD3d 653; South Nassau Orthopedic Surgery & Sports Medicine, P.C., 47 Misc 3d 142[A], 2015 NY Slip Op 50674[U]).

Defendant’s motion was properly granted as, “in opposition to defendant’s motion to dismiss the complaint, plaintiff made no attempt to demonstrate the existence of an excuse, justifiable or otherwise, for plaintiff’s failure to comply with the 90-day notice” (South Nassau Orthopedic Surgery & Sports Medicine, P.C., 47 Misc 3d 142[A], 2015 NY Slip Op 50674[U], *1; see also Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co., 62 Misc 3d 141[A], 2019 NY Slip Op 50085[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).

Accordingly, the order is affirmed.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

Decided on November 8, 2019

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

Law Offices of Aloy O. Ibuzor (Michael L. Rappaport of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondents (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 3, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint and made implicit CPLR 3212 (g) findings in plaintiff’s favor.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

Plaintiffs, Bed Stuy Medical, P.C. and Bed Stuy Physical Therapy, P.C., commenced this action to recover first-party no-fault benefits for services they had provided to their assignor, Valdez Vallon, who had allegedly sustained injuries in a motor vehicle accident which had occurred on March 15, 2013. Defendant moved for summary judgment dismissing the complaint on the ground that, in a prior action entitled “Yevgeniy Margulis, Ph.D., Bed Stuy Physical Therapy, P.C., Bed Stuy Medical, P.C. a/a/o Constantine McLaughlin, Valdez Vallon against Travelers Insurance,” the Civil Court (Theresa M. Ciccotto, J.), by order entered January 28, 2016, had granted defendant’s motion for summary judgment dismissing the same claims related [*2]to the same accident and assignor, Valdez Vallon, as the claims at issue herein.^[FN1] Defendant’s motion for summary judgment in the prior action had been unopposed, and plaintiffs never moved to vacate their default in opposing the motion. Thus, defendant asserted, plaintiffs’ present action is barred by the doctrine of res judicata. Defendant appeals from an order of the Civil Court (Harriet L. Thompson, J.) entered October 3, 2017 denying defendant’s motion for summary judgment dismissing this action and making implicit CPLR 3212 (g) findings in plaintiff’s favor.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). The doctrine of res judicata is applicable to a judgment that has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]).

In support of the motion at issue, defendant submitted the January 28, 2016 order of the Civil Court and defendant’s moving papers in the prior action, which included the complaint, supporting affidavits and the claim forms involved therein. Upon a review of the record, we find that defendant’s moving papers established that the causes of action asserted herein are identical to those which were asserted in the prior action, which action was decided by the January 28, 2016 order of the Civil Court granting defendant’s motion for summary judgment dismissing those claims. In view of the foregoing, plaintiffs were precluded, under the doctrine of res judicata, from asserting the same causes of action in this case (see Matter of Hodes v Axelrod, 70 NY2d 364, 372 [1987]; see also Matter of Hunter, 4 NY3d 260; Lighthouse 925 Hempstead, LLC v Citibank, N.A., 66 AD3d 846, 847 [2009]; Matter of ADC Contr. & Constr., Inc. v Town of Southampton, 50 AD3d 1025 [2008]). Consequently, defendant established its entitlement to summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: November 08, 2019

Footnotes

Footnote 1:The claim by Yevgeniy Margulis, Ph.D., as assignee of Constantine McLaughlin, was previously settled by stipulation dated April 2, 2014.