April 3, 2008

First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51266(U))

https://www.beynensonlaw.com/case-law/first-help-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2008-ny-slip-op51266u/

Court: Appellate Term, Second Department
Decided: April 3, 2008
Citation: 2008 NY Slip Op 51266(U) · 20 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Declaratory judgment, res judicata Discovery and procedure

Cite as

First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 127(A), 2008 NY Slip Op 51266(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 second action was barred by res judicata because the prior discovery dismissal was with prejudice. The prior identical action for assigned no-fault benefits had been dismissed under CPLR 3126 (3) for failure to comply with a so-ordered discovery stipulation. Although the dismissal order did not expressly state that it was with prejudice or on the merits, the stipulation provided for preclusion, making the dismissal with prejudice. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment.

Reported in New York Official Reports at First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51266(U))

[*1]

First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51266(U) [20 Misc 3d 127(A)]

Decided on April 3, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2006-1736 K C.

First Help Acupuncture, P.C. a/a/o Simone Brin, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 22, 2006. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of res judicata. Defendant argued that plaintiff had previously commenced an identical action, which was dismissed pursuant to CPLR 3126 (3) for plaintiff’s failure to comply with a so-ordered discovery stipulation. Plaintiff cross-moved for summary judgment. The court below granted defendant’s motion and denied plaintiff’s cross motion. The instant appeal by plaintiff ensued.

Although the court’s order dismissing the prior action did not specifically state that the dismissal of the action was with prejudice or on the merits, since the so-ordered discovery stipulation provided for preclusion, the dismissal was with prejudice and, as a result, plaintiff was barred from commencing a second action (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614 [1985]; Lipin v Bender, 216 AD2d 131 [1995]). Accordingly, the court below properly granted defendant’s motion for summary judgment dismissing the complaint based on [*2]the doctrine of res judicata.
Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 3, 2008

Cited by

Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51552(U))The provider's prior discovery dismissal did not bar a second action because it did not constitute a determination on the merits.

Similar decisions

First Help Acupuncture, P.C. v General Assur. Co. (2012 NY Slip Op 50142(U))A provider seeking to restore a case more than one year after it was marked off must show a meritorious claim and a reasonable excuse for delay.
New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))The provider's right to appeal directly from the discovery and amendment order terminated when judgment was entered in the action.
LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.
First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2007 NY Slip Op 50365(U))The provider failed to establish a prima facie case because its employee's affidavit did not lay a business-records foundation.
A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50702(U))The providers' prior discovery dismissal did not bar a second action because it was not with prejudice and no preclusion order appeared.