Master Cheng Acupuncture, P.C. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 50404(U))

Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuyan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 22, 2018. The order granted the branch of defendant’s motion seeking to vacate so much of that court’s September 6, 2016 judgment, entered pursuant to an order of that court (Robin S. Garson, J.) dated July 6, 2016 granting plaintiff’s unopposed motion for summary judgment, as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie.

ORDERED that the order entered February 22, 2018 is reversed, with $30 costs, and the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie is denied.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for services provided as a result of a motor vehicle accident, which had occurred on January 19, 2015. After issue had been joined, the Civil Court (Robin S. Garson, J.), by order dated July 6, 2016, granted plaintiff’s unopposed motion for summary judgment. A judgment in the principal sum of $15,027.72 was entered in the Civil Court on September 6, 2016 pursuant to the order. On July 6, 2016, before [*2]the judgment was entered in the Civil Court, defendant Global Liberty Ins. of NY (Global Liberty) commenced a declaratory judgment action in the Supreme Court, Bronx County, against Master Cheng Acupuncture, P.C. and three of its assignors herein, Jocelyn Defou, Ebenior Jacques and Thahina McKenzie, among others. Thereafter, Global Liberty moved in the Supreme Court for leave to enter a default judgment against, insofar as is relevant to this appeal, Master Cheng Acupuncture, P.C., Defou, Jacques and McKenzie. On March 16, 2017, an amended declaratory judgment in favor of Global Liberty was entered in the Supreme Court upon the default of those parties. The Supreme Court held that those parties are not entitled to no-fault benefits as a result of the motor vehicle accident that occurred on January 19, 2015, due to the failure to appear for scheduled examinations under oath, and that “all judgments in any actions involving the listed Medical Provider Defendants [including plaintiff herein] as Assignee of [Defou, McKenzie and Jacques] are permanently stayed and all judgments are vacated.” Relying upon the Supreme Court’s judgment in the declaratory judgment action, defendant moved in the Civil Court to vacate the judgment which had been entered on September 6, 2016 in the Civil Court. Plaintiff opposed the motion. By order entered February 22, 2018, the Civil Court (Harriet L. Thompson, J.) granted the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Defou, Jacques and McKenzie. The court stated that, although it found that defendant had not demonstrated an excusable default, the court was “constrained” by the declaratory judgment which had permanently stayed and vacated “any and all judgments regarding” plaintiff and the named assignors. This appeal by plaintiff ensued.

Reliance by the Civil Court and defendant upon the part of the Supreme Court’s amended declaratory judgment stating that all judgments in any actions involving plaintiff herein, Master Cheng Acupuncture, P.C., as assignee of Defou, McKenzie and Jacques “are vacated” is misplaced, as “in general, relief from a judgment may only be sought from the court which rendered it” (Chestnut Hill Real Estate v Contractors Cas. & Sur. Co., 280 AD2d 446, 446 [2001]; Bronx Med. Diagnostic, P.C. v Global Liberty Ins. of NY, 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see Campbell v Bank of Am., N.A., 155 AD3d 820 [2017]; Commissioner of Labor of State of NY v Hinman, 103 AD2d 886 [1984]). As the Supreme Court lacked the authority to vacate the judgment which had been rendered by the Civil Court in the instant action (see Campbell, 155 AD3d 820; Chestnut Hill Real Estate, 280 AD2d 446; Commissioner of Labor of State of NY, 103 AD2d 886; Bronx Med. Diagnostic, P.C., 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U]), the Civil Court erred in finding that it was constrained by the Supreme Court’s judgment to grant the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie. Consequently, that part of the judgment should not have been vacated.^[FN1]

Accordingly, the order entered February 22, 2018 is reversed and the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie is denied.

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 13, 2020

Footnotes

Footnote 1: We note that the amended declaratory judgment permanently stayed enforcement of so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Defou, Jacques and McKenzie.