March 13, 2008

Keiler Chiropractic, LLC v NY Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50544(U))

Headnote

The relevant facts of the case involved a provider seeking to recover assigned first-party no-fault benefits from an insurance company. The insurance company moved to dismiss the complaint based on the pendency of a prior action in Queens County Civil Court for the same cause of action. The court granted the insurance company's motion only to the extent of deeming the prior action in Queens County Civil Court discontinued, and denied the motion seeking the imposition of costs pursuant to part 130 of the Rules of the Chief Administrator. The main issue decided by the court was whether the instant complaint should be dismissed based on the pendency of a prior action for the same cause of action. The court held that both lawsuits were predicated on the same cause of action, and that the prior action had proceeded to discovery, so the court should properly have dismissed the instant complaint. The court also ruled that the branch of the insurance company's motion seeking costs pursuant to a specific rule was properly denied. The holding of the case was that the order was modified to provide for the dismissal of the instant complaint and affirmed without costs.

Reported in New York Official Reports at Keiler Chiropractic, LLC v NY Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50544(U))

Keiler Chiropractic, LLC v NY Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50544(U)) [*1]

Keiler Chiropractic, LLC v NY Cent. Mut. Fire Ins. Co.

2008 NY Slip Op 50544(U) [19 Misc 3d 130(A)]

Decided on March 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-217 K C.

Keiler Chiropractic, LLC a/a/o Roger Talavera, Respondent,
against
NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), dated December 7, 2006. The order granted that branch of defendant’s motion seeking to dismiss the complaint based on the pendency of a prior action in Queens County Civil Court only to the extent that the court deemed the prior action discontinued, and in effect denied that branch of defendant’s motion seeking the imposition of costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR).

Order modified by striking the provision deeming the prior action in Queens County Civil Court discontinued and by providing that defendant’s motion is granted to the extent of dismissing the complaint; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based on the pendency of a prior action for the same cause of action (CPLR 3211 [a] [4]). The court granted defendant’s motion only to the extent that the court in essence deemed discontinued the prior action in Queens County Civil Court.

In our view, the court should properly have dismissed the instant complaint. The record demonstrates that both lawsuits are predicated on the same cause of action, and that the prior action had proceeded to discovery. Moreover, as a general matter, deference is accorded to the first action filed (see Reckson Assoc. Realty Corp. v Blasland, Bouck & Lee, 230 AD2d 723 [1996]; Matter of Wallach, 130 AD2d 495, 496 [1987]), and no sufficient reason was shown to depart from this rule here. Accordingly, we modify the order to provide for the dismissal of the instant complaint (see Packes v Cendant Mtge. Corp., 19 AD3d 386 [2005]).

The branch of defendant’s motion seeking costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR) was properly denied as plaintiff’s actions, under the circumstances presented, do not rise to the level warranting the imposition of such costs. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 13, 2008