March 11, 2014

Flatlands Med., P.C. v Kemper Ins. Co. (2014 NY Slip Op 50419(U))

https://www.beynensonlaw.com/case-law/flatlands-med-p-c-v-kemper-ins-co-2014-ny-slip-op50419u/

Court: Appellate Term, Second Department
Decided: March 11, 2014
Citation: 2014 NY Slip Op 50419(U) · 42 Misc 3d 150(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Issues: Declaratory judgment, res judicata
Legal questions: Effect of insurer's declaratory judgment (see the maps)

Cite as

Flatlands Med., P.C. v Kemper Ins. Co., 42 Misc 3d 150(A), 2014 NY Slip Op 50419(U) (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.

The provider's claims were barred by a default declaratory judgment denying its entitlement to benefits from the same accident. The insurer moved to dismiss under CPLR 3211 (a) (5) and CPLR 3212. It established that a default judgment in Supreme Court, New York County, declared that the defendants named in that action, including the provider, were not entitled to recover assigned first-party no-fault benefits stemming from the accident. Because the provider's present action sought benefits arising from that same accident, dismissal was proper. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.

Reported in New York Official Reports at Flatlands Med., P.C. v Kemper Ins. Co. (2014 NY Slip Op 50419(U))

[*1]

Flatlands Med., P.C. v Kemper Ins. Co.

2014 NY Slip Op 50419(U) [42 Misc 3d 150(A)]

Decided on March 11, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-890 K C.

Flatlands Medical, P.C. as Assignee of DWAYNE GRIFFITHS, Appellant,
against
Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 6, 2012. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

In support of its motion, defendant established that a declaratory judgment had been entered on default in a Supreme Court, New York County, action, which provided that the named defendants in that action, including plaintiff herein, “are not entitled to recover assigned first-party no-fault benefits stemming from the accident at issue.” As the instant action seeks to recover for assigned first-party no-fault benefits arising from the same accident at issue in the Supreme Court case, defendant’s motion was properly granted (see Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U] [App Term, 2d, 11th & 13th Jud Dists 2013] EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012] Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012])

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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 dismissal proper because a default Supreme Court declaratory judgment declared the named defendants, including the provider, not entitled to no-fault benefits from the same accident.

Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itCited or followed

Of the 164 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.

Cited in this decision

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

Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co. (2013 NY Slip Op 51441(U)) FollowedA discovery order precluding an insurer from offering trial evidence does not bar res judicata effect for a default declaratory 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.
Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50233(U)) FollowedAn unvacated default declaratory order barring no-fault benefits is a final determination that can preclude a provider's action under res judicata.

Similar decisions

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.
Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))The insurer failed to establish timely denials for seven claims but proved timely mailing of EUO notices and denials for two others.
Performance Plus Med., P.C. v Kemper Ins. Co. (2015 NY Slip Op 51777(U))A party may not appeal from an order entered on its own default under CPLR 5511.
Queens Brooklyn Med. Rehab, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50978(U))The provider's appeal from a conditional discovery order became academic after a subsequent order dismissed the action.
Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.