February 9, 2018

Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))

https://www.beynensonlaw.com/case-law/active-chiropractic-p-c-v-21st-century-ins-co-2018-ny-slip-op50200u/

Court: Appellate Term, Second Department
Decided: February 9, 2018
Citation: 2018 NY Slip Op 50200(U) · 58 Misc 3d 156(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished 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

Active Chiropractic, P.C. v 21st Century Ins. Co., 58 Misc 3d 156(A), 2018 NY Slip Op 50200(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action. Before the provider commenced this action, the insurer sought declaratory relief against the provider and its assignor. The Supreme Court order granted the request for entry of a default judgment but did not declare the parties' rights. It therefore was not a conclusive final determination supporting res judicata or collateral estoppel. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion. Because the insurer raised no appellate issue concerning the provider's prima facie showing, the court expressly did not review that determination.

Reported in New York Official Reports at Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))

[*1]

Active Chiropractic, P.C. v 21st Century Ins. Co.

2018 NY Slip Op 50200(U) [58 Misc 3d 156(A)]

Decided on February 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-912 K C

Active Chiropractic, P.C., as Assignee of Kareem Mills, Respondent,
against
21st Century Ins. Co., Appellant.

Law Offices of Buratti, Rothenberg & Burns (Elke E. Mirabella and Joelle Roberts), for appellant. Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 18, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

Prior to the commencement of this action by a provider to recover assigned first-party no-fault benefits, defendant brought a declaratory judgment action in the Supreme Court, New York County, against, among others, plaintiff herein and its assignor. Thereafter, defendant, asserting that plaintiff and the assignor had failed to answer the complaint, moved in the Supreme Court for, among other things, the entry of a default judgment. By order dated December 8, 2014, the Supreme Court stated that an unrelated branch of defendant’s motion was denied and that the “remainder of the motion [wa]s granted without opposition.” After the instant action was commenced in the Civil Court, plaintiff moved for summary judgment. Relying on the Supreme Court’s order, defendant cross-moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrines of res judicata and collateral estoppel. Defendant appeals from the order of the Civil Court entered November 18, 2015 which granted plaintiff’s motion and denied defendant’s cross motion.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment [*2]of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

With respect to defendant’s cross motion, as the December 8, 2014 Supreme Court order in the declaratory judgment action merely granted the branch of defendant’s motion for the entry of a default judgment against plaintiff and its assignor, but failed to make a statement declaring the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767 [1989]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar (see Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128[A], 2015 NY Slip Op 51886[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 09, 2018

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 DJ does not conclusively decide these claims or cannot operate on them

Held the Supreme Court order had no preclusive effect because it merely granted the default motion without declaring the parties' rights, so it was not a conclusive final determination.

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

Of the 164 decisions on this question in the Second Department courts and the Court of Appeals, 27 (this one included) are in the same category.

Cited in this decision

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

Metro Health Prods., Inc. v Nationwide Ins. (2015 NY Slip Op 25203)A declaratory judgment order granting a default motion without declaring the parties' rights does not preclude a no-fault action.
Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co. (2015 NY Slip Op 51886(U)) FollowedAn order authorizing entry of a declaratory judgment has no preclusive effect if it does not declare the parties' rights.
Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. (2015 NY Slip Op 50222(U)) Contrasted (cf., but see)A default declaratory judgment conclusively determining no obligation to pay no-fault benefits bars a contrary recovery under res judicata.
EBM Med. Health Care, P.C. v Republic W. Ins. (2012 NY Slip Op 22300) Contrasted (cf., but see)An unvacated default declaratory judgment has res judicata effect in a provider's pending no-fault action.

Cited by

A label shows how the later decision treated this one.

Kerisli Chiropractic, P.C. v American Tr. Ins. Co. (2018 NY Slip Op 28325) DistinguishedA default declaratory order specifying the parties' rights has res judicata effect when it remains unvacated.
Parisien v ZipCar c/o Corp. Serv. Co. (2026 NY Slip Op 26130) DistinguishedA default declaratory order expressly determining no-fault coverage can preclude a provider's claims even without entry of a final judgment.
Sutter Pharmacy v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op 50610(U))The insurer's late, successive summary judgment motion was granted based on a subsequent declaratory judgment barring coverage.

Similar decisions

Active Chiropractic, P.C. v Allstate Ins. (2018 NY Slip Op 50201(U))An unpleaded res judicata defense may support summary judgment absent surprise or prejudice to the opposing party.
Active Care Med. Supply Corp. v American Commerce Ins. Co. (2016 NY Slip Op 51813(U))An unvacated default declaratory judgment order can bar a provider's no-fault action under res judicata without a notice of entry.
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.
Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co. (2016 NY Slip Op 51072(U))An entered default declaratory judgment barring no-fault coverage has preclusive effect even without service of notice of entry.
Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))The insurer's 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding.