July 8, 2016

Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co. (2016 NY Slip Op 51076(U))

https://www.beynensonlaw.com/case-law/island-life-chiropractic-p-c-v-unitrin-auto-home-ins-co-2016-ny-slipop-51076u/

Court: Appellate Term, Second Department
Decided: July 8, 2016
Citation: 2016 NY Slip Op 51076(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Declaratory judgment, res judicata
Legal questions: Effect of insurer's declaratory judgment (see the maps)

Cite as

Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 51076(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 argument that the defendant insurer lacked privity with the declaratory judgment plaintiff was unpreserved. The declaratory judgment plaintiff obtained a contested summary judgment order denying the provider no-fault coverage based on the assignor's EUO nonappearance. The defendant insurer then obtained dismissal of the provider's no-fault action under res judicata. The Appellate Term, Second Department, affirmed summary judgment for the defendant insurer because the provider had not raised its privity argument in the Civil Court. Its remaining challenges to the declaratory order's preclusive effect lacked merit.

Reported in New York Official Reports at Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co. (2016 NY Slip Op 51076(U))

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

Island Life Chiropractic, P.C., as Assignee of KENNY LOUISSANT, Appellant,
against
Unitrin Auto and Home Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 14, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Island Life Chiropractic, P.C. (Island Life) commenced this action in the Civil Court on August 19, 2013 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident which had occurred on April 6, 2012. In its answer to the complaint, the insurer identified itself as Kemper Independence Insurance Company (Kemper) and asserted, among other things, that Island Life’s action is barred by collateral estoppel and res judicata. Before Island Life commenced its action, a declaratory judgment action had been commenced in the Supreme Court, New York County, by Kemper against Island Life, five other providers and the assignor herein, Kenny Louissant, alleging that Louissant had breached the terms of insurance policy number FZ717084 by failing to appear for duly scheduled examinations under oath. After Island Life had served an answer in the Supreme Court action, Kemper moved in that court, pursuant to CPLR 3212, for an order declaring there was no coverage for, insofar as is relevant here, Island Life’s claims. Island Life opposed the motion. By order entered October 24, 2013, the Supreme Court declared that Island Life was “not entitled to no-fault reimbursements or benefits for the motor vehicle accident that occurred on April 6, 2012 under policy FZ717084.”

Thereafter, defendant moved in the Civil Court for, among other things, summary judgment dismissing the complaint on the ground that the present action is barred by virtue of the order in the declaratory judgment action. By order entered July 14, 2014, the Civil Court granted defendant’s opposed motion.

Island Life’s contention on appeal, in essence, that defendant Unitrin was not in privity with Kemper, and, thus, that the order in the declaratory judgment action in favor of Kemper has no preclusive effect in the instant action against Unitrin, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court (see Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]; Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596 [1992]; Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op [*2]50133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). There is no merit to plaintiff’s remaining contentions with respect to the lack of preclusive effect of the order in the declaratory judgment action. Consequently, we do not disturb the Civil Court’s determination that the action is barred by res judicata.

Accordingly, the order is affirmed.

Solomon, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 08, 2016

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

Upheld dismissal because the Supreme Court order declaring the provider not entitled to benefits for the accident barred the action; the privity objection was unpreserved and the other preclusion arguments lacked merit.

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

Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2016 NY Slip Op 50133(U))The provider's argument that the defending insurer lacked privity with the declaratory judgment plaintiff was unpreserved.

Cited by

A label shows how the later decision treated this one.

Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51358(U)) FollowedThe provider's no-fault action was barred by a prior declaratory order establishing that the insurer had no liability for a staged accident.

Similar decisions

Island Life Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51465(U))The insurer was granted summary judgment because its proof established that it had issued no policy covering the loss.
Island Life Chiropractic, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51820(U))The provider failed to establish that its claims were denied late or that timely denials were conclusory, vague or legally meritless.
Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51843(U))The insurer failed to prove mailing of IME notices, and the provider failed to establish its prima facie entitlement to summary judgment.
Island Life Chiropractic Pain Care, PLLC v Allstate Ins. Co. (2018 NY Slip Op 51006(U))The insurer failed to establish collateral estoppel or valid policy cancellation in support of its lack-of-coverage defense.
Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51551(U))The insurer's summary judgment motion based on the assignor's EUO nonappearance was granted on appeal.