Opinion
2019-499 K C
01-21-2022
North Valley Medical, P.C., as Assignee of Ernest Frazier, Respondent, v. Permanent General Assurance Corp., Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Petre and Associates, P.C. (Damin Toell of counsel), for respondent (no brief filed).
Unpublished Opinion
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant.
Petre and Associates, P.C. (Damin Toell of counsel), for respondent (no brief filed).
PRESENT THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre-Melendez, J.), entered March 1, 2019. The order denied defendant's motion for, in effect, summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for, in effect, summary judgment dismissing the complaint is granted.
Plaintiff North Valley Medical, P.C. (North Valley) commenced this action against Permanent General Assurance Corp. (Permanent General) to recover assigned first-party no-fault benefits for services that North Valley had provided to its assignor, Ernest Frazier, who had allegedly sustained injuries in a motor vehicle accident on November 3, 2013. After issue was joined, Permanent General commenced a declaratory judgment action in the Supreme Court, New York County, against, insofar as relevant here, North Valley and Ernest Frazier, which parties failed to appear or answer in the Supreme Court action. By order entered December 3, 2015, the Supreme Court granted, on default, Permanent General's motion for a default judgment against, among others, North Valley and Ernest Frazier.
Thereafter, Permanent General moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the present Civil Court action is barred under the doctrine of res judicata, as the instant claims had been fully litigated in the Supreme Court. North Valley opposed the motion. Permanent General appeals from an order of the Civil Court entered March 1, 2019 denying Permanent General'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 A.D.3d 912, 913-914 [2016]; see Matter of Hunter, 4 N.Y.3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929])." 'A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised or could have been raised in the prior action'" (Tracey v Deutsche Bank National Trust, 187 A.D.3d 815, 817 [2020], quoting Eaddy v U.S. Bank N.A., 180 A.D.3d 756, 758 [2020]).
In light of the Supreme Court's order in the declaratory judgment action, the Civil Court should have granted Permanent General's motion for, in effect, summary judgment dismissing the Civil Court complaint (see Pavlova v Metlife Auto & Home, 68 Misc.3d 133[A], 2020 NY Slip Op 51007[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; 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 North Valley in this action would destroy or impair rights or interests established by the 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). Moreover, the Supreme Court's order is a conclusive final determination, notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 A.D.3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 A.D.3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 A.D.2d 399 [2000]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc.3d 147 [A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C., 38 Misc.3d 1; 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]).
Accordingly, the order is reversed and defendant's motion for, in effect, summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.