February 9, 2018

Active Chiropractic, P.C. v Allstate Ins. (2018 NY Slip Op 50203(U))

Headnote

The court considered the fact that the plaintiff, Active Chiropractic, P.C., filed a lawsuit to recover first-party no-fault benefits, and the defendant, Allstate Insurance, argued that the action was barred by a previous declaratory judgment order. The previous order declared that the defendant was not obligated to provide coverage for the claims arising from the accident in question, and that the plaintiff and its assignor were not entitled to reimbursement for services rendered. The main issue decided was whether the defendant's failure to raise the defense of res judicata in its answer was grounds for dismissing the plaintiff's motion for summary judgment. The holding of the case was that the order granting the plaintiff's motion was reversed, the defendant's answer was deemed amended to assert the affirmative defense of res judicata, and the plaintiff's motion for summary judgment was denied while the defendant's cross motion, in effect, 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 50203(U))

Active Chiropractic, P.C. v Allstate Ins. (2018 NY Slip Op 50203(U)) [*1]
Active Chiropractic, P.C. v Allstate Ins.
2018 NY Slip Op 50203(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-1299 K C

Active Chiropractic, P.C., as Assignee of Thembi Knight, 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 1, 2013 to recover assigned, first-party no-fault benefits. Defendant served an answer in or about September 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, [*2]finding that 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