July 21, 2023
Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50795(U))
https://www.beynensonlaw.com/case-law/shafai-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2023-ny-slip-op50795u/
- Decided
- July 21, 2023
- Citation
- 2023 NY Slip Op 50795(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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.
Reported in New York Official Reports at Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50795(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), entered April 5, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits arising out of a March 9, 2015 accident, defendant moved for summary judgment dismissing the first through fifth and seventh causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and dismissing the sixth cause of action on the ground that it was barred by an April 18, 2019 declaratory judgment issued by the Supreme Court, Nassau County, in an action commenced by defendant herein against plaintiff herein in regard to the same March 9, 2015 accident. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered April 5, 2022, the Civil Court (Ellen E. Edwards, J.) granted defendant’s motion for summary judgment on the ground that plaintiff had failed to appear for duly scheduled EUOs and denied plaintiff’s cross-motion.
“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel [*2]Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).
” ‘A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised . . . in the prior action’ ” (Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2020], quoting Eaddy v US Bank N.A., 180 AD3d 756, 758 [2020]; see North Val. Med., P.C. v Permanent Gen. Assur. Corp., 74 Misc 3d 127[A], 2022 NY Slip Op 50048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).With respect to the branch of defendant’s motion seeking summary judgment dismissing the sixth cause of action, defendant demonstrated that the assignor, accident date, and date of service in the Supreme Court declaratory judgment action were identical to those for the claim underlying the sixth cause of action in the instant case. Consequently, that cause of action was barred under the doctrine of res judicata by virtue of the April 18, 2019 declaratory judgment and, thus, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing that cause of action (see ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 64 Misc 3d 134[A], 2019 NY Slip Op 51098[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), albeit on other grounds, since a judgment in favor of plaintiff upon the sixth cause of action in this action would destroy or impair rights or interests established by the declaratory judgment (see Schuylkill Fuel Corp., 250 NY at 306-307; North Val. Med., P.C., 2022 NY Slip Op 50048[U]; ZG Chiropractic Care, P.C., 2021 NY Slip Op 50079[U]; Valdan Acupuncture, P.C., 2019 NY Slip Op 51098[U]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).
Contrary to plaintiff’s sole contention on appeal with respect to so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing the first through fifth and seventh causes of action, the affidavit of defendant’s employee was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing those causes of action.
Accordingly, the order is affirmed.
MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: July 21, 2023
Legal questions (4)
Questions 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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice
Held the insurer employee's affidavit sufficient to raise a presumption that the EUO scheduling letters and denial of claim forms were timely mailed, the provider's sole contention on appeal.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer's affidavit raised a presumption of timely mailing of the EUO scheduling letters, so dismissal of six causes of action on the EUO no-show defense was affirmed.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer's employee affidavit raised a presumption that the denial of claim forms on the EUO no-show claims were timely mailed, sustaining dismissal of six causes of action.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held one cause of action barred by res judicata because the insurer showed the assignor, accident date and date of service matched the claim covered by its Supreme Court declaratory judgment against the provider.
Of the 163 decisions on this question in the Second Department courts and the Court of Appeals, 100 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- North Val. Med., P.C. v Permanent Gen. Assur. Corp. (2022 NY Slip Op 50048(U)) FollowedAn unvacated default judgment in a declaratory judgment action is conclusive for res judicata purposes.
- ZG Chiropractic Care, P.C. v 21st Century Ins. Co. (2021 NY Slip Op 50079(U)) FollowedThe insurer justified vacating its default through an existing stay and obtained dismissal based on a preclusive declaratory judgment.
- Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co. (2019 NY Slip Op 51098(U)) FollowedThe provider's claim was barred by res judicata because its assignment followed commencement of the insurer's declaratory judgment action.
- 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.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50442(U)) FollowedThe provider's claims were dismissed based on res judicata and sufficient proof of timely mailing for the EUO nonappearance defense.
Similar decisions
- Ahmed Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50276(U))The provider's first, second, third, fourth and sixth causes of action were barred by a prior default declaratory judgment.
- Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50295(U))The provider's claims were barred by res judicata because a prior default declaratory judgment adjudicated the same bills.
- Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51358(U))The provider's no-fault action was barred by a prior declaratory order establishing that the insurer had no liability for a staged accident.
- Arcadia Acupuncture, P.C. v Nationwide Ins. Co. (2021 NY Slip Op 51258(U))The provider obtained partial judgment for untimely denials, but disputed EUO convenience barred judgment on later claims.
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.