Opinion
No. 2013–2433 K C.
07-07-2015
DELTA DIAGNOSTIC RADIOLOGY, P.C. as Assignee of Gianfranco Lopresti, Appellant, v. HERTZ CO., Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 1, 2013. The order granted defendant's motion to dismiss the complaint.
ORDERED that the order is affirmed, with $25 costs.
Delta Diagnostic Radiology, P.C. (Delta) commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries allegedly sustained in a motor vehicle accident on July 7, 2009. While this no-fault action was pending, Hertz Co. (Hertz) commenced a declaratory judgment action in the Supreme Court, New York County, on March 5, 2010 against Delta, eight other providers, and the injured assignor, alleging that the providers had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath. A declaratory judgment was entered on default in the Supreme Court on April 22, 2011, declaring that Hertz “is not obligated to provide insurance coverage” to Delta or the other named providers for “expenses” arising out of the July 7, 2009 collision involving Delta's assignor. Thereafter, Hertz moved in the Civil Court to dismiss Delta's action, pursuant to CPLR 3211(a)(5), contending that this action is barred by virtue of the declaratory judgment. By order entered August 1, 2013, the Civil Court granted defendant's motion, and we affirm.
In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v. Republic W. Ins., 38 Misc.3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012] ; Ava Acupuncture, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 34 Misc.3d 149[A], 2012 N.Y. Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012] ; SZ Med., P.C. v. Erie Ins. Co., 24 Misc.3d 126[A], 2009 N.Y. Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 306–307 [1929] ). The declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a 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 [2006] ; Matter of Eagle Ins. Co. v. Facey, 272 A.D.2d 399 [2000] ; EBM Med. Health Care, P.C., 38 Misc.3d at 3 ). Plaintiff's remaining contention is unpreserved for appellate review (see Buck Realty of Long Is., Inc. v. Elliott, 106 AD3d 768 [2013] ; DeLeon v. New York City Tr. Auth., 5 AD3d 531 [2004] ).
Accordingly, the order is affirmed.
ALIOTTA, J.P., SOLOMON and ELLIOT, JJ., concur.