Reported in New York Official Reports at TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U))
against
Tri-State Consumer Ins. Co. Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered August 7, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (James E. d’Auguste, J.), entered August 7, 2013, modified by reinstating plaintiff’s claims for first-party no-fault benefits for services rendered July 1, 2010 through July 8, 2010; as modified, order affirmed, with $10 costs.
Defendant made a prima facie showing of entitlement to partial summary judgment dismissing plaintiff’s no-fault claims for services rendered July 12, 2010 through August 31, 2010, by demonstrating that it timely and properly denied the claims based on the June 17, 2010 independent medical examination (IME) report of its examining doctor, which set forth a sufficient basis and medical rationale for the conclusion that there was no need for further acupuncture treatment (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 [2016]). Plaintiff’s opposition consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof was insufficient to raise a triable issue as to medical necessity (see Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 143[A], 2012 NY Slip Op 50102[U][App Term, 1st Dept. 2012]). The assignor’s subjective complaints of pain cannot overcome the objective medical tests detailed in the affirmed report of defendant’s examining doctor (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]).
Triable issues remain, however, in connection with plaintiff’s claims for services rendered July 1, 2010 through July 8, 2010. While the record reflects that defendant properly paid a portion of the submitted claims pursuant to the workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]), triable issues remain with respect to the claims denied outright by defendant. Defendant’s position that the charges billed under CPT Code 97039 are not reimbursable because plaintiff is not licensed to provide physical medicine modalities is unpersuasive (see Forrest Chen Acupuncture Servs. P.C. v GEICO Ins. Co., 54 AD3d 996 [2008]; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept. 2014]; Sunrise Acupuncture PC v Tri-State Consumer [*2]Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435[U][App Term, 1st Dept. 2014]), and defendant’s submissions were insufficient to demonstrate prima facie that the claims were properly denied in accordance with Physical Medicine Ground Rule 11.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 27, 2016
Reported in New York Official Reports at City Care Acupuncture, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51036(U))
| City Care Acupuncture, P.C. v Ameriprise Ins. Co. |
| 2016 NY Slip Op 51036(U) [52 Misc 3d 135(A)] |
| Decided on June 23, 2016 |
| 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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2015-277 K C
against
Ameriprise Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered October 20, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that plaintiffs’ assignor had failed to appear for an examination under oath (EUO) which had been duly scheduled for June 1, 2012; that although plaintiffs’ assignor had appeared for an EUO on June 15, 2012, there was a mutual agreement to reschedule that EUO; and that plaintiffs’ assignor had failed to appear on July 9, 2012, the date of the rescheduled EUO. Plaintiffs cross-moved for summary judgment. By order entered October 20, 2014, the Civil Court granted defendant’s motion and denied plaintiffs’ cross motion.
On appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15, 2012. Contrary to plaintiffs’ contention, defendant’s moving papers establish that, although plaintiffs’ assignor appeared for this EUO, there was a mutual agreement to reschedule it, at the assignor’s request, to enable plaintiffs’ assignor’s counsel to attend the EUO (cf. DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
As plaintiffs’ remaining contention lacks merit, the order is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co. (2016 NY Slip Op 51031(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Interboro Mutual Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 19, 2014. The order denied defendant’s motion to vacate a prior order of the same court entered December 18, 2013 granting, on default, plaintiff’s motion for summary judgment and, upon vacatur, to deny plaintiff’s motion.
ORDERED that the order entered August 19, 2014 is reversed, with $30 costs, defendant’s motion to vacate the order entered December 18, 2013 is granted and, upon vacatur, plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff’s treating physician to appear for an examination before trial (EBT), and plaintiff opposed the motion. Approximately four months later, but before the Civil Court had ruled on defendant’s motion, plaintiff moved for summary judgment. Defendant failed to submit opposition papers thereto. By order entered September 13, 2013, the Civil Court (Ingrid Joseph, J.) determined that defendant had established that it had timely denied plaintiff’s claims, but denied defendant’s motion. By order entered December 18, 2013, the Civil Court (Carol Ruth Feinman, J.) granted plaintiff’s motion for summary judgment without opposition. Immediately thereafter, defendant moved, pursuant to CPLR 5015, to vacate the December 18, 2013 order. Defendant appeals from an order of the Civil Court (Devin P. Cohen, J.) entered August 19, 2014 which denied defendant’s motion to vacate the December 18, 2013 order.
To vacate the order made upon defendant’s failure to oppose the motion, defendant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; Estrada v Selman, 130 AD3d 652 [2015]; Hogan v Schwartz, 119 AD3d 650, 651 [2014]). Here, defendant’s counsel and a paralegal from counsel’s office offered a detailed and credible excuse of law office failure which, under the circumstances, was sufficient to excuse plaintiff’s default (see CPLR 2005; Estrada, 130 AD3d 652; Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614 [2015]). Furthermore, as defendant submitted a copy of the motion papers that it had submitted in support of its separate motion for summary judgment, along with a copy of the order determining defendant’s motion for summary judgment (see Atlantic Radiology Imaging, P.C., as Assignee of Mohammad Feroz v Interboro [*2]Mut. Ins. Co., ___ Misc 3d ___, 2016 NY Slip Op ______ [appeal No. 2013-2390 K C], decided herewith), defendant demonstrated a meritorious defense.
Accordingly the order entered August 19, 2014 is reversed, defendant’s motion to vacate the order entered December 18, 2013 is granted and, upon vacatur, plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51029(U))
| Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2016 NY Slip Op 51029(U) [52 Misc 3d 135(A)] |
| Decided on June 23, 2016 |
| 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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2014-2145 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 23, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.
ORDERED that the order is affirmed, with $25 costs.
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 had failed to appear for duly scheduled examinations under oath. Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.
For the reasons stated in Professional Health Imaging, P.C., as Assignee of Luis Lopez v State Farm Mut. Auto. Ins. Co. (__ Misc 3d ___, 2016 NY Slip Op _______ [appeal No. 2014-2016 K C], decided herewith), the order is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51028(U))
| Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2016 NY Slip Op 51028(U) [52 Misc 3d 134(A)] |
| Decided on June 23, 2016 |
| 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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2014-2136 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 22, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.
ORDERED that the order is affirmed, with $25 costs.
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 had failed to appear for duly scheduled examinations under oath. Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.
For the reasons stated in Professional Health Imaging, P.C., as Assignee of Luis Lopez v State Farm Mut. Auto. Ins. Co. (__ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2014-2016 K C], decided herewith), the order is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51026(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered June 30, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.
ORDERED that the order is affirmed, with $25 costs.
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 had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.
Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Plaintiff failed to allege, much less prove, that it had responded in any way to the EUO requests at issue. Thus, it cannot raise any objection to the reasonableness of those requests in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]). Consequently, contrary to plaintiff’s further argument on appeal, there was no outstanding discovery warranting the denial of defendant’s motion pursuant to [*2]CPLR 3212 (f).
The issues raised in plaintiff’s remaining arguments are moot and/or lack merit.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co. (2016 NY Slip Op 51014(U))
| Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co. |
| 2016 NY Slip Op 51014(U) [52 Misc 3d 133(A)] |
| Decided on June 23, 2016 |
| 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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2390 K C
against
Interboro Mutual Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered September 13, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial (EBT).
As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).
Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at S & R Med., P.C. v GEICO Gen. Ins. Co. (2016 NY Slip Op 51013(U))
| S & R Med., P.C. v GEICO Gen. Ins. Co. |
| 2016 NY Slip Op 51013(U) [52 Misc 3d 133(A)] |
| Decided on June 23, 2016 |
| 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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2140 K C
against
GEICO General Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 6, 2013. The order, insofar as appealed from and as limited by the brief, upon denying plaintiff’s motion for summary judgment, failed to make findings, pursuant to CPLR 3212 (g), that plaintiff had established certain facts for all purposes in the action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding that there were triable issues of fact.
Plaintiff’s sole argument on appeal is that the Civil Court, upon denying plaintiff’s motion for summary judgment, should have made findings, pursuant to CPLR 3212 (g), that plaintiff had established certain facts for all purposes in the action. As we decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]; Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50383[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Pollenex Servs., Inc. v GEICO Gen. Ins. Co., 44 Misc 3d 126[A], 2014 NY Slip Op 50953[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at Stephen v NY Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51010(U))
| Stephen v NY Cent. Mut. Fire Ins. Co. |
| 2016 NY Slip Op 51010(U) [52 Misc 3d 133(A)] |
| Decided on June 23, 2016 |
| 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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2027 Q C
against
NY Central Mut. Fire Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 23, 2013. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing 50 of the complaint’s causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, which motion plaintiff opposed. By order entered May 23, 2013, the Civil Court granted the branches of defendant’s motion seeking the dismissal of 50 of the complaint’s causes of action and denied the branches seeking dismissal of the remaining 50 causes of action. Defendant appeals from so much of the order as denied the branches of its motion.
Upon a review of the record, we find that defendant’s moving papers do not establish defendant’s prima facie entitlement to summary judgment dismissing the remaining 50 causes of action, as defendant failed to conclusively demonstrate that its time to pay or deny the claims at issue had been tolled.
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 23, 2016
Reported in New York Official Reports at Vital Meridian Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51007(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 2, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for services it rendered to its assignor for injuries he had sustained in a motor vehicle accident on April 25, 2012. Prior to the commencement of this action, defendant instituted a declaratory judgment action in the Supreme Court, New York County, against plaintiff’s assignor and various medical providers, including plaintiff herein. By order dated December 4, 2012, the Supreme Court granted, on default, the motion therein for a declaratory judgment, which order stated, among other things, that it is “ORDERED, ADJUDGED and DECLARED that Jose Ramon Fernandez Perez is not an eligible injured person to no-fault benefits under American Transit . . . policy CAP 612795, Claim No. 76337-03 . . . . American Transit is not required to provide, pay or honor or reimburse any claims . . . seeking to recover no-fault benefits arising under . . . policy CAP 612795, Claim No. 76337-03 from the alleged accident of April 25, 2011 involving . . . Jose Ramon Fernandez Perez.”
In October 2012, plaintiff moved for summary judgment in the instant action and defendant cross-moved to dismiss the complaint on the ground that the December 4, 2012 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered May 2, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Contrary to plaintiff’s contention, the Civil Court correctly determined that the instant action is barred under the doctrine of res judicata by virtue of the Supreme Court order dated December 4, 2012 (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). The [*2]Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2000]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Plaintiff’s remaining contentions either lack merit or are unpreserved for appellate review.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 23, 2016