Decided on August 14, 2020

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

Decided on August 14, 2020

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

Decided on August 14, 2020

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

Decided on August 14, 2020

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

Decided on August 14, 2020

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 Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered March 2, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

The process server’s affidavits constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving general agents of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 [*2]AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant’s employee in support of defendant’s motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

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

[*1] (July 29, 2020)

Bruno, Gerbino & Soriano, LLP, Melville, NY (Nathan M. Shapiro of counsel), for appellant.

In an action for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered August 1, 2019. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against the defendants Roy Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C., upon their failure to appear or answer the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Ameriprise Insurance Company, issued an automobile insurance policy to the defendant Roy Kim and his wife which covered, inter alia, a 2012 Chevrolet Camaro for the period from May 14, 2017, through November 14, 2017. Pursuant to the policy, Kim reported to the plaintiff that on August 14, 2017, the subject vehicle was involved in a hit-and-run accident in Queens, in which another vehicle allegedly reversed and struck the subject vehicle while it was parked, and then fled the scene. Upon receipt of such notification, the plaintiff conducted an investigation and concluded that neither Kim’s claim nor those of his no-fault benefit assignees were covered under the policy. The plaintiff commenced this action, inter alia, for a judgment declaring that pursuant to the policy, it has no duty to indemnify the defendants for any claims arising out of the subject accident. The defendants Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C. (hereinafter collectively the non-answering defendants) failed to appear or answer the complaint. The plaintiff then moved, inter alia, for leave to enter a default judgment against the non-answering defendants and the Supreme Court denied the motion.

“A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant’s default, and the facts constituting the claim” (Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606 [2017]; see CPLR 3215 [f]). “ '[A] default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that [the plaintiff] establish a right to a declaration’ ” against the defendants (JBBNY, LLC v Dedvukaj, 171 AD3d 898, 902 [2019], quoting Dole Food Co., Inc. v Lincoln Gen. Ins. Co., 66 AD3d 1493, 1494 [2009]; see Merchants Ins. Co. of N.H. v Long Is. Pet Cemetery, 206 AD2d 827, 828 [1994]).

Here, while the plaintiff submitted proof of proper service of the summons and the complaint, the non-answering defendants’ default, and the facts constituting the plaintiff’s claim, the plaintiff’s submissions in support of the motion failed to establish its right to the declarations sought (see JBBNY, LLC v Dedvukaj, 171 AD3d at 902). As such, we agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the non-answering defendants.

Based on the foregoing, the plaintiff’s remaining contention has been rendered academic. Rivera, J.P., Chambers, Iannacci and Wooten, JJ., concur.

Decided on July 10, 2020

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

Decided on July 10, 2020

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

Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 15, 2018. The order, insofar as appealed from, 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.

Plaintiff commenced this action against “21st Century Insurance Company” in the Civil Court on June 22, 2017 to recover assigned first-party no-fault benefits for services that had been provided to its assignor, who had allegedly been injured in an accident on June 7, 2011. Prior to the commencement of this action, 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had brought a declaratory judgment action in the Supreme Court, New York County, against plaintiff and its assignor herein, among other parties, pertaining to the June 7, 2011 accident. By order dated June 3, 2014, the Supreme Court granted, on default, a motion by 21st Century Advantage Insurance Company and 21st Century Security Insurance Company for a default judgment against the provider and assignor herein and “ordered, adjudged and decreed” that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had “no duty to provide coverage” for the accident at issue (occurring on June 7, 2011); that the applicable insurance policy is null and void with respect to that accident; [*2]and that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company are “not obligated to provide coverage for no-fault reimbursement based upon the failure of the defendants [in the Supreme Court action] to verify their claims.” A Supreme Court judgment, dated July 20, 2017, set forth the same declaration as stated in the June 3, 2014 order. Relying upon the Supreme Court’s order and judgment, defendant moved in the Civil Court for summary judgment dismissing the complaint. Plaintiff opposed the motion on the grounds that there is no collateral estoppel or res judicata effect from the Supreme Court’s order and judgment, and that defendant had failed to establish a prima facie case. Plaintiff also cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court, entered October 15, 2018, as denied defendant’s 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 Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; 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] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court declaratory judgment, entered on default, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint (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., 250 NY 304; 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 1).

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

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