February 9, 2018
Active Chiropractic, P.C. v Allstate Ins. (2018 NY Slip Op 50202(U))
https://www.beynensonlaw.com/case-law/active-chiropractic-p-c-v-allstate-ins-2018-ny-slip-op-50202u/
- Decided
- February 9, 2018
- Citation
- 2018 NY Slip Op 50202(U) · 58 Misc 3d 156(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Effect of insurer's declaratory judgment (see the maps)
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.
Reported in New York Official Reports at Active Chiropractic, P.C. v Allstate Ins. (2018 NY Slip Op 50202(U))
| Active Chiropractic, P.C. v Allstate Ins. |
| 2018 NY Slip Op 50202(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-1298 K C
against
Allstate Insurance, Appellant.
Abrams, Cohen & Associates, P.C. (Frank Piccininni), 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 (Theresa M. Ciccotto, J.), entered March 16, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion, in effect, for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.
Plaintiff commenced this action on February 8, 2013 to recover assigned, first-party no-fault benefits. Defendant served an answer on March 19, 2013. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred by virtue of an order entered on March 14, 2014 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that defendant herein was not obligated to provide coverage for no-fault claims arising out of the accident in question, and that plaintiff herein and its assignor were not entitled to reimbursement for services rendered to the assignor with respect to that accident. Plaintiff did not oppose defendant’s cross motion in the Civil Court. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion, finding that [*2]defendant had failed to raise the defense of res judicata in its answer.
For the reasons stated in Active Chiropractic, P.C., as Assignee of Mary Parrish v Allstate Ins. (— Misc 3d &mdash, 2018 NY Slip Op — [appeal No. 2016-1297 K C], decided herewith), the order is reversed, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.
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.
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 action barred by res judicata because a default Supreme Court order declared the insurer owed no coverage for the accident, deeming the answer amended to plead the defense.
Of the 163 decisions on this question in the Second Department courts and the Court of Appeals, 100 (this one included) are in the same category.
Similar decisions
- Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.
- 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.
- Serge Chiropractic Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50762(U))The insurer's motion for summary judgment dismissing the provider's complaint was denied on appeal.
- Active Care Med. Supply Corp. v Amica Mut. Ins. Co. (2018 NY Slip Op 50500(U))The insurer failed to establish res judicata, but its proof of bill nonreceipt defeated the provider's summary judgment cross motion.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))An out-of-state affidavit's lack of a certificate of conformity under CPLR 2309 (c) is not a fatal defect.