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February 5, 2021

Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50086(U))

https://www.beynensonlaw.com/case-law/allay-med-servs-p-c-v-nationwide-ins-2021-ny-slip-op-50086u/

Court
Appellate Term, Second Department
Decided
February 5, 2021
Citation
2021 NY Slip Op 50086(U)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Declaratory judgment, res judicata Discovery and procedure
Legal questions
Effect of insurer's declaratory judgment (see the maps)
Cite as
Allay Med. Servs., P.C. v Nationwide Ins., 2021 NY Slip Op 50086(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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.

The provider's action was barred by res judicata because the prior declaratory judgment covered the same claim and accident. The insurer established that the claim number and accident date matched those in a Supreme Court judgment, entered on the provider's default, declaring no obligation to pay the identified claims. A recovery would impair rights established by that judgment. Although the insurer moved under CPLR 3211 (a) (5) after joinder of issue under CPLR 3211 (e), the motion presented a purely legal question and could be treated as summary judgment without notice under CPLR 3211 (c). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50086(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Allay Medical Services, P.C., as Assignee of Diop, Gregoria, Respondent,

against

Nationwide Ins., Appellant.

Hollander Legal Group , P.C. (Allan S. Holllander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated May 31, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.

Plaintiff Allay Medical Services, P.C. (Allay) commenced this action on June 1, 2016 to recover assigned first-party no-fault benefits for injuries sustained by “Diop, Gregoria” in an accident on July 3, 2015, the complaint stating that claim number 859968 had been assigned to the matter. Defendant Nationwide Ins. (Nationwide) served an answer and, thereafter, moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred, insofar as is relevant, under the doctrine of res judicata, by an order and judgment in a Supreme Court declaratory judgment action. The Supreme Court order and judgment, entered April 25, 2016 upon the default of Allay in opposing a motion by Nationwide, declared that Nationwide was “under no obligation to pay any of the claims identified in Exhibit 1 to the Complaint.” Among other things, Exhibit 1 identified claim number 859968 and an accident on July 3, 2015, and listed the eligible injured person as having the initials G.D. Plaintiff opposed defendant’s motion in the Civil Court. As limited by the brief, defendant appeals from so much of an order of the Civil Court entered May 31, 2019 as denied the motion.

Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue was joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for [*2]summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).

As defendant’s moving papers sufficiently established that the claim number and the date of the subject accident in the action at bar are identical to those in the prior action where there has been a final adjudication of the claim on the merits (see Ciraldo, 140 AD3d at 913), plaintiff’s present action in the Civil Court was precluded under the doctrine of res judicata. Consequently, in light of the Supreme Court’s order and judgment, the Civil Court should have granted defendant’s motion (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the judgment and order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 5, 2021

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: 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 declaratory judgment against it covered the identical claim number and accident date, so summary judgment dismissing the complaint was granted.

  • Appellate DivisionApp Div 4
  • Appellate TermApp Term 132
  • Trial courtsTrial 27
2021, Appellate Division: 1 decision (1 Stayed pending DJ)2016, Appellate Division: 1 decision (1 Stayed pending DJ)2015, Appellate Division: 1 decision (1 Stay denied)2025, Appellate Division: 1 decision (1 Barred by DJ)2023, Appellate Term: 7 decisions (5 Barred by DJ, 1 Not bound: parties, 1 DJ does not reach)2022, Appellate Term: 11 decisions (9 Barred by DJ, 1 DJ does not reach, 1 Stay denied)2021, Appellate Term: 11 decisions (8 Barred by DJ, 2 Not bound: parties, 1 DJ does not reach)2020, Appellate Term: 12 decisions (9 Barred by DJ, 1 Not bound: parties, 2 DJ does not reach)2019, Appellate Term: 15 decisions (7 Barred by DJ, 3 Not bound: parties, 1 DJ does not reach, 4 Stay denied)2018, Appellate Term: 11 decisions (7 Barred by DJ, 2 Not bound: parties, 2 DJ does not reach)2017, Appellate Term: 5 decisions (3 Barred by DJ, 2 DJ does not reach)2016, Appellate Term: 15 decisions (13 Barred by DJ, 1 Not bound: parties, 1 DJ does not reach)2015, Appellate Term: 14 decisions (11 Barred by DJ, 1 Not bound: parties, 2 DJ does not reach)2014, Appellate Term: 4 decisions (4 Barred by DJ)2013, Appellate Term: 3 decisions (1 Barred by DJ, 1 DJ does not reach, 1 Stayed pending DJ)2012, Appellate Term: 3 decisions (2 Barred by DJ, 1 Not bound: parties)2011, Appellate Term: 2 decisions (1 Barred by DJ, 1 DJ does not reach)2010, Appellate Term: 2 decisions (1 Not bound: parties, 1 Stayed pending DJ)2009, Appellate Term: 1 decision (1 Barred by DJ)2008, Appellate Term: 1 decision (1 Not bound: parties)2024, Appellate Term: 3 decisions (1 Not bound: parties, 2 DJ does not reach)2025, Appellate Term: 11 decisions (1 Barred by DJ, 1 Barred in part, 1 Not bound: parties, 8 DJ does not reach)2026, Appellate Term: 1 decision (1 Not bound: parties)2023, Trial courts: 1 decision (1 DJ does not reach)2022, Trial courts: 3 decisions (2 Barred by DJ, 1 Not bound: parties)2021, Trial courts: 4 decisions (4 Barred by DJ)2020, Trial courts: 1 decision (1 Barred by DJ)2019, Trial courts: 1 decision (1 Barred by DJ)2018, Trial courts: 1 decision (1 Barred by DJ)2013, Trial courts: 2 decisions (2 Barred by DJ)2011, Trial courts: 2 decisions (1 Barred by DJ, 1 Stayed pending DJ)2009, Trial courts: 1 decision (1 Stayed pending DJ)2008, Trial courts: 1 decision (1 Not bound: parties)2007, Trial courts: 2 decisions (1 Barred by DJ, 1 Stayed pending DJ)2006, Trial courts: 1 decision (1 Not bound: parties)2024, Trial courts: 2 decisions (1 Barred by DJ, 1 DJ does not reach)2026, Trial courts: 4 decisions (3 Barred by DJ, 1 Stay denied)2012, Trial courts: 1 decision (1 Stay denied)This decision
2010201520202025
Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

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

  • Renelique v State-Wide Ins. Co. (2016 NY Slip Op 50095(U))A default declaratory judgment precludes a no-fault recovery that would impair the rights established by that judgment.
  • EBM Med. Health Care, P.C. v Republic W. Ins. (2012 NY Slip Op 22300) FollowedAn unvacated default declaratory judgment has res judicata effect in a provider's pending no-fault action.
  • Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co. (2014 NY Slip Op 50052(U))The provider's no-fault action was barred by res judicata because a default declaratory judgment denied its right to benefits.

Similar decisions

  • Metro Health Prods., Inc. v Nationwide Ins. (2016 NY Slip Op 51122(U))An unpleaded res judicata defense may support summary judgment when it causes no surprise or prejudice to the opposing party.
  • 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.
  • ZG Chiropractic Care, P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50079(U))The insurer justified vacating its default through an existing stay and obtained dismissal based on a preclusive declaratory judgment.
  • 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.
  • Medical Supply of NY Corp. v Nationwide Ins. Co. (2022 NY Slip Op 51253(U))The provider's claims were barred by res judicata because the insurer established that they concerned the accident covered by a prior declaration.
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