June 13, 2014

All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am. (2014 NY Slip Op 24161)

https://www.beynensonlaw.com/case-law/all-boro-psychological-servs-p-c-v-travelers-prop-cas-co-of-am-2014-ny-slip-op-24161/

Court: Appellate Term, Second Department
Decided: June 13, 2014
Citation: 2014 NY Slip Op 24161 · 44 Misc 3d 48
Posture: Trial
Outcome: Insurer prevailed
Later treatment: Followed in 5 later decisions (see Cited by)
Issues: Declaratory judgment, res judicata Discovery and procedure

Cite as

All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 summary judgment binds judges of coordinate jurisdiction without service of notice of entry. Civil Court granted the insurer summary judgment dismissing the complaint, but another judge later conducted a nonjury trial and awarded the provider benefits, treating the earlier order as nonbinding because it had not been served with notice of entry. Summary judgment finally determines the merits, triggering res judicata and law of the case; the service requirement for conditional orders did not apply. Under CPLR 5520 (c), the Appellate Term, Second Department, deemed the premature notice of appeal taken from the judgment, reversed it, and remitted for judgment dismissing the complaint for the insurer. The provider raised no challenge to the summary judgment motion's merits.

Reported in New York Official Reports at All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am. (2014 NY Slip Op 24161)

All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am.

2014 NY Slip Op 24161 [44 Misc 3d 48]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 20, 2014

[*1]

All Boro Psychological Services, P.C., as Assignee of Ucebia Wilson, Respondent,
v
Travelers Property Casualty Company of America, Appellant.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, June 13, 2014

APPEARANCES OF COUNSEL

Law Offices of Karen C. Dodson, New York City (Arvind Purohit of counsel), for appellant.

Gary Tsirelman P.C., Brooklyn (Irena Golodkeyer of counsel), for respondent.

{**44 Misc 3d at 49} OPINION OF THE COURT

Memorandum.

Ordered that, on the court’s own motion, the notice of appeal from the decision dated January 6, 2011 is deemed a premature notice of appeal from the judgment entered February 28, 2011 (see CPLR 5520 [c]); and it is further ordered that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Devin P. Cohen, J.), on November 12, 2010, granted defendant’s motion for summary judgment dismissing the complaint. Nevertheless, the action subsequently proceeded to trial before Judge Johnny Lee Baynes. At the nonjury trial, defendant’s counsel advised the court of the existence of the summary judgment order and that the order had been issued in open court following oral argument. However, the court ruled that the order was not binding because it had not been served with notice of entry on plaintiff’s counsel. Following the trial, judgment was entered in favor of plaintiff in the principal sum of $1,061.63.

A grant of summary judgment is the procedural equivalent of a trial (see Falk v Goodman, 7 NY2d 87, 91 [1959]; News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146 [2005]), and an order granting such relief is as final and as conclusively determinative of all issues in an action as is a judgment after{**44 Misc 3d at 50} trial (see Engel v Aponte, 51 AD2d 989 [1976]; Riley v Southern Transp. Co., 278 App Div 605 [1951]). Thus, since the grant of summary judgment operates as a final determination on the merits of the claims in question, once a court has granted such a motion based on the facts adduced before it, the doctrine of res judicata applies (see Buckley & Co. v City of New York, 121 AD2d 933 [1986]; Cebron v McBride Dev. Corp., 93 AD2d 876 [1983]; Eidelberg v Zellermayer, 5 AD2d 658 [1958], affd 6 NY2d 815 [1959]), as does the doctrine of law of the case. Therefore, an order granting summary judgment is binding on all other judges of coordinate jurisdiction (see Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933 [2011]), and the conclusive effect of such an order may not be fatally [*2]undermined, as it was here, by allowing the party whose action was dismissed a second chance to litigate the matter (see Buckley & Co., 121 AD2d at 935). Despite plaintiff’s contention to the contrary, the decision of the Appellate Division, Second Department, in Lyons v Butler (134 AD2d 576 [1987]), does not stand for the proposition that an order granting summary judgment has to be served together with notice of entry on the adverse party in order for it to take effect against that party. Rather, that case states that, unlike an order granting summary judgment, which finally disposes of an action and determines all of the issues between the parties (see Riley, 278 App Div 605), a conditional order, where compliance by a party is necessary, has to be served together with notice of entry for it to be binding.

We note in passing that, under the circumstances presented, even if the trial court thought that the order granting summary judgment was not enforceable at the time of trial, the better practice would have been to exercise its discretion and grant defendant’s counsel’s request for an adjournment so as to afford defendant an opportunity to take any steps necessary to render the order enforceable instead of wasting scarce judicial resources conducting a trial after summary judgment had already been granted to defendant.

Accordingly, and as plaintiff has raised no issue with respect to the merits of defendant’s motion for summary judgment, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Cited by

A label shows how the later decision treated this one.

Great Health Care Chiropractic, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51324(U)) FollowedThe provider's action was barred by a declaratory judgment relieving the insurer of liability for claims arising from the accident.
Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co. (2016 NY Slip Op 51072(U)) FollowedAn entered default declaratory judgment barring no-fault coverage has preclusive effect even without service of notice of entry.
Active Care Med. Supply Corp. v American Commerce Ins. Co. (2016 NY Slip Op 51813(U)) FollowedAn unvacated default declaratory judgment order can bar a provider's no-fault action under res judicata without a notice of entry.
Ahava Med. Diagnostic, P.C. v Hertz Co. (2022 NY Slip Op 50298(U)) FollowedA prior no-coverage declaratory judgment retains its binding effect even if notice of entry is served after a provider's default judgment.
EMC Health Prods., Inc. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51788(U)) FollowedThe insurer established grounds to vacate its oral-argument default but failed to show dismissal under a conditional order.
Omphil Care, Inc. v Hertz Co. (2015 NY Slip Op 51052(U))A default declaration of no-fault nonliability has res judicata effect even before service with notice of entry.

Similar decisions

All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(U))The insurer's unanswered verification requests left the insurer's time to pay or deny untriggered, warranting dismissal of the action.
J.K.M. Med. Care, P.C. v Interboro Ins. Co. (2016 NY Slip Op 26348)The insurer's request for entry of a satisfaction of judgment required a merits determination once judgment made its summary judgment request academic.
Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co. (2011 NY Slip Op 51308(U))The provider's summary judgment cross motion was premature because discovery remained outstanding.
Action Potential Chiropractic, PLLC v Travelers Ins. Co. (2018 NY Slip Op 51811(U))The provider failed to establish that its claim was untimely denied or that a timely denial was legally insufficient.
City Wide Social Work & Psychological Servs., P.L.L.C. v State-Wide Ins. Co. (2008 NY Slip Op 50909(U))The insurer failed to establish a meritorious defense warranting vacatur of a judgment entered on an unopposed summary judgment motion.