April 3, 2008

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

Headnote

The court considered that the provider had previously commenced an identical action, which was dismissed for failure to comply with a so-ordered discovery stipulation. Defendant argued that this dismissal should be with prejudice, and the court sided with the defendant, agreeing that the dismissal was with prejudice and that the plaintiff was therefore barred from commencing a second action. The main issue decided was whether the dismissal of the prior action was with prejudice, and the holding of the court was that it was, and therefore the defendant's motion for summary judgment dismissing the complaint based on the doctrine of res judicata was affirmed.

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))

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This opinion is uncorrected and will not be published in the printed Official Reports.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