February 9, 2018

Active Chiropractic, P.C. v Allstate Ins. (2018 NY Slip Op 50202(U))

Headnote

The relevant facts considered by the court in this case were that plaintiff Active Chiropractic, P.C. sought to recover first-party no-fault benefits from Allstate Insurance. Defendant Allstate Insurance argued that the action was barred by a prior Supreme Court declaratory judgment order, which declared that Allstate was not obligated to provide coverage for the accident in question, and that the plaintiff and its assignor were not entitled to reimbursement for services rendered. The main issue decided by the court was whether the defense of res judicata could be raised by the defendant, as it had not been initially asserted in their answer. The holding of the case was that the order granting the plaintiff's motion for summary judgment was reversed, defendant's answer was deemed amended to assert the affirmative defense of res judicata, and plaintiff's motion for summary judgment was denied while defendant's cross motion for summary judgment dismissing the complaint was granted.

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)) [*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Active Chiropractic, P.C., as Assignee of Ricky Smith, Respondent,
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