Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered September 12, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Plaintiff, RX Warehouse Pharmacy, Inc. (RX Warehouse), commenced this action on February 17, 2015 to recover assigned first-party no-fault benefits for services rendered to plaintiff’s assignor, who had allegedly been injured in a motor vehicle accident on December 17, 2009. Defendant 21st Century Insurance Company (21st Century) moved for summary judgment dismissing the complaint on the ground that the issue of whether 21st Century was required to provide no-fault coverage for the claim in dispute had been decided in a Supreme Court, Nassau County, declaratory judgment action, by order entered August 23, 2012 granting 21st Century’s motion for the entry of a default judgment. RX Warehouse opposed the motion in the Civil Court and cross-moved for summary judgment. 21st Century, in further support of its motion in the Civil Court, proffered an order of the Supreme Court, entered May 6, 2015, which had granted 21st Century’s motion for summary judgment, and a judgment entered February 4, 2016 pursuant to the May 6, 2015 order, declaring, insofar as is relevant, that the insurance policy at issue was null and void with respect to the December 17, 2009 collision, and that 21st Century has no duty to defend or indemnify any person under the policy in any action or proceeding brought for damages as a result of the December 17, 2009 collision. RX Warehouse’s attorney argued in an affirmation that the judgment is not applicable to this provider, and that, in any [*2]event, the judgment had not been served on this provider.

By order entered September 12, 2016, the Civil Court denied 21st Century’s motion and granted RX Warehouse’s cross motion, finding that the Supreme Court’s August 23, 2012 order is not a conclusive final determination, as it did not make any declarations determining a lack of coverage. The Civil Court further found that the Supreme Court’s February 4, 2016 judgment had not been served on RX Warehouse’s counsel, and even if the Civil Court considered the judgment, the “judgment does not declare any rights or obligations that pertain to the plaintiff or plaintiff’s claims in this action.”

A defendant’s default admits all the factual allegations of the complaint and all reasonable inferences to be drawn therefrom (see Lamm v Stevenson, 276 AD2d 531 [2000]). Here, by defaulting in the declaratory judgment action, RX Warehouse admitted all the facts alleged in the complaint in that action regarding the staged nature of the accident in question. An order, such as the August 23, 2012 order granting 21st Century’s motion for the entry of a default judgment in the declaratory judgment action, “provides such a ‘judgment’ as will bar relitigation under the doctrines of res judicata or collateral estoppel so long as the requisites of identity of issue and opportunity to contest are present” (Vavolizza v Krieger, 33 NY2d 351, 356 [1974]; see also Slater v American Min. Spirits Co., 33 NY2d 443 [1974]).

Consequently, in light of the August 23, 2012 order, 21st Century’s motion in the Civil Court 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]), as any judgment in favor of RX Warehouse 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 Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

Decided on February 19, 2021

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

Decided on February 19, 2021

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

Decided on February 19, 2021

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

Decided on February 19, 2021

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

Hollander Legal Group , P.C. (Allan S. Hollander 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 (Odessa Kennedy, J.), entered May 31, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

Plaintiff Allay Medical Services, P.C. (Allay) commenced this action on June 1, 2016 to recover assigned first-party no-fault benefits for injuries sustained by “Miller, Nichole” in an accident on October 31, 2015, the complaint stating that claim number 363323-GC had been assigned to the matter. Defendant Nationwide Ins. (Nationwide) served an answer and, thereafter, moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred, insofar as is relevant, under the doctrine of res judicata, by an order and judgment in a Supreme Court declaratory judgment action. The Supreme Court order and judgment, entered April 25, 2016 upon the default of Allay in opposing a motion by Nationwide, declared that Nationwide was “under no obligation to pay any of the claims identified in Exhibit 1 to the Complaint.” Among other things, Exhibit 1 identified claim number 363323-GC and an accident on October 31, 2015, and listed the eligible injured person as having the initials N.M. Plaintiff opposed defendant’s motion in the Civil Court. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered May 31, 2019 as denied the motion.

For the reasons stated in Allay Med. Servs., as Assignee of Diop, Gregoria v Nationwide Ins. (— Misc 3d &mdash, 2021 NY Slip Op _____ [appeal No. 2019-1180 K C], decided herewith), the order, insofar as appealed from, is reversed, and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.

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

Hollander Legal Group , P.C. (Allan S. Holllander 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 (Odessa Kennedy, J.), dated May 31, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for, in effect, summary judgment dismissing the complaint.

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

Plaintiff Allay Medical Services, P.C. (Allay) commenced this action on June 1, 2016 to recover assigned first-party no-fault benefits for injuries sustained by “Diop, Gregoria” in an accident on July 3, 2015, the complaint stating that claim number 859968 had been assigned to the matter. Defendant Nationwide Ins. (Nationwide) served an answer and, thereafter, moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred, insofar as is relevant, under the doctrine of res judicata, by an order and judgment in a Supreme Court declaratory judgment action. The Supreme Court order and judgment, entered April 25, 2016 upon the default of Allay in opposing a motion by Nationwide, declared that Nationwide was “under no obligation to pay any of the claims identified in Exhibit 1 to the Complaint.” Among other things, Exhibit 1 identified claim number 859968 and an accident on July 3, 2015, and listed the eligible injured person as having the initials G.D. Plaintiff opposed defendant’s motion in the Civil Court. As limited by the brief, defendant appeals from so much of an order of the Civil Court entered May 31, 2019 as denied the motion.

Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue was joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for [*2]summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).

“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 Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]).

As defendant’s moving papers sufficiently established that the claim number and the date of the subject accident in the action at bar are identical to those in the prior action where there has been a final adjudication of the claim on the merits (see Ciraldo, 140 AD3d at 913), plaintiff’s present action in the Civil Court was precluded under the doctrine of res judicata. Consequently, in light of the Supreme Court’s order and judgment, the Civil Court should have granted defendant’s motion (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]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the judgment and order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).

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

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

Law Office of David O’Connor, P.C. (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Philip Hom, J.), entered February 20, 2019. The order granted the branch of defendant’s motion seeking dismissal of the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking dismissal of the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel is denied and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Plaintiff commenced this action in 2003 to recover first-party no-fault benefits as assignee of the eligible injured person for services provided to its assignor, who was allegedly injured in a motor vehicle accident on August 26, 2002. Thereafter, State Farm commenced a declaratory judgment action in Supreme Court, Nassau County, against the assignor and a number of other individuals. Upon the default of the assignor, among others, in submitting opposition to State Farm’s motion for declaratory relief, the Supreme Court, in a judgment entered on November 22, 2006, declared that the August 26, 2002 collision had been a staged accident; that the insurance policy at issue is null and void with regard to any claim arising out of that collision; and that State Farm has no duty to provide no-fault benefits to the assignor herein and the other individual defendants. Defendant then moved in the Civil Court for an order dismissing the complaint on several grounds, including a lack of coverage due to a staged accident, as previously determined by the Supreme Court. In opposition, plaintiff argued that it did not have a “full and fair” opportunity to litigate the declaratory judgment action. By order entered February 20, 2019, the Civil Court granted defendant’s motion, finding that plaintiff’s claim is barred under the doctrine of collateral estoppel.

“Collateral estoppel precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). As the declaratory judgment was obtained on default and not actually litigated on the merits in the Supreme Court, there is no identity of issues between the present action and the prior determination in the declaratory judgment action (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Matter of Hereford Ins. Co. v McKoy, 160 AD3d 734, 736 [2018]; 47 Thames Realty, LLC v Rusconie, 85 AD3d 853, 853 [2011]). Moreover, as plaintiff commenced this action in 2003 as assignee of the eligible injured person, plaintiff and its assignor were not in privity when the declaratory judgment action was commenced in 2005. Consequently, contrary to the determination of the Civil Court, plaintiff’s action is not barred under the doctrine of collateral estoppel.

As the Civil Court did not address the alternate grounds asserted by defendant in its motion seeking dismissal of the complaint, the matter must be remitted to the Civil Court for a determination of those remaining grounds (see Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see also McElroy v Sivasubramaniam, 305 AD2d 944 [2003]).

Accordingly, the order is reversed, the branch of defendant’s motion seeking dismissal of the complaint on the ground that plaintiff’s action is barred by the doctrine of collateral estoppel is denied and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

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

Decided on February 5, 2021

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered July 5, 2018. The order granted defendant’s motion to vacate an order of that court (Reginald A. Boddie, J.) entered April 23, 2012 which granted plaintiff’s prior unopposed motion for summary judgment and, upon such vacatur, to dismiss plaintiff’s motion and for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

Plaintiff commenced this action on July 23, 2010 to recover assigned first-party no-fault benefits for services provided to Quintero Nathaniel, who was allegedly injured in a motor vehicle accident on November 23, 2009. On August 12, 2011, plaintiff moved for summary judgment. Under an adjournment stipulation executed by the parties’ counsel, opposition by defendant, 21st Century Insurance Company (21st Century), to plaintiff’s motion was to be served on or before January 23, 2012, and the motion was adjourned to April 23, 2012. Defendant failed to oppose the motion. By order entered April 23, 2012, the Civil Court (Reginald A. Boddie, J.) granted plaintiff’s motion, finding, among other things, that defendant had failed to appear for the calendar call on the return date of the motion. There is no indication that a judgment has been entered pursuant to the April 23, 2012 order.

In May 2012, defendant moved to vacate the April 23, 2012 order and, upon such vacatur, to dismiss plaintiff’s motion for summary judgment and to grant summary judgment to defendant dismissing the complaint on the ground, among others, that defendant had a reasonable excuse for failing to oppose plaintiff’s motion, in that, before the return date of plaintiff’s motion, the action had been stayed by an order of the Supreme Court, Nassau County, dated December 19, 2011, in a declaratory judgment action. Plaintiff opposed defendant’s motion in the Civil Court. [*2]By order entered July 5, 2018, the Civil Court (Richard J. Montelione, J.) granted defendant’s motion and dismissed the complaint with prejudice. As noted by the Civil Court, defendant’s motion had been adjourned numerous times from 2012 until it was heard in 2018. The Civil Court took judicial notice of a judgment that had been entered on February 4, 2016 in the Supreme Court upon a prior order of the Supreme Court, granting 21st Century’s motion for summary judgment and declaring that the November 23, 2009 accident, among other named collisions, was intentional, that 21st Century has no duty to provide coverage for any no-fault claim in connection with the November 23, 2009 collision, and that the insurance policy at issue was null and void.

Defendant sufficiently established a reasonable excuse for its default (see CPLR 5015 [a] [1]) in opposing plaintiff’s motion in the Civil Court by demonstrating that a stay issued by the Supreme Court in its December 19, 2011 order was in effect when defendant’s opposition papers would have been due pursuant to the parties’ briefing stipulation, and that the stay remained in effect on the adjourned date of plaintiff’s motion.

With respect to a potentially meritorious defense to the action, the Civil Court properly found that, by virtue of the Supreme Court declaratory judgment, dated February 4, 2016, of which the Civil Court took judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2005]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), there has been a conclusive determination of the merits of the claim in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). Consequently, in light of the declaratory judgment, defendant’s motion in the Civil Court was properly 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]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

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