July 23, 2021

Solution Bridge, Inc. v GEICO Ins. Co. (2021 NY Slip Op 50731(U))

Headnote

The relevant facts of the case were that Solution Bridge, Inc. brought an action to recover no-fault benefits from GEICO Insurance Company. GEICO moved for summary judgment to dismiss the complaint, arguing that the action was barred by a declaratory judgment entered in a previous action in Supreme Court, Nassau County. They also argued that Solution Bridge had failed to appear for duly scheduled examinations under oath (EUOs). The main issues decided by the court were whether the action was barred by the previous declaratory judgment and whether Solution Bridge had failed to appear for EUOs. The court held that GEICO's motion for summary judgment should have been granted, as any judgment in favor of Solution Bridge would impair rights or interests established by the previous declaratory judgment and that GEICO had established that Solution Bridge failed to appear for the EUOs. Therefore, the court reversed the order and granted GEICO's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Solution Bridge, Inc. v GEICO Ins. Co. (2021 NY Slip Op 50731(U))

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

Solution Bridge, Inc., as Assignee of Satchel, Shante, Respondent,

against

GEICO Ins. Co., Appellant.

Law Office of Goldstein, Flecker & Hopkins (Alison M. Chulis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 24, 2020. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by a declaratory judgment entered in the Supreme Court, Nassau County, or, in the alternative, on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order dated January 24, 2020, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff had failed to appear for duly scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

Defendant’s motion for summary judgment dismissing the complaint should have been granted under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) since, under the circumstances, any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Healing Art Acupuncture, P.C. v 21st [*2]Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Even absent the declaratory judgment, defendant’s motion should have been granted on the alternate ground. Defendant established that the initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and plaintiff has not rebutted those elements of defendant’s prima facie case. Moreover, the Civil Court held, in effect pursuant to CPLR 3212 (g), that defendant had established the timely mailing of its denial of claim form, which finding has not been challenged by plaintiff.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for summary judgment dismissing the complaint is granted.

ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021