Opinion
Index No. CV-717121-19/QU
09-19-2022
Julius Francois Parisien, M.D. As Assignee of Diallo, Plaintiff(s), v. Avis Budget Car Rental, LLC C/O Sedgwick Claims Management Services, Defendant(s).
Plaintiff's counsel: Law Offices of Gabriel & Moroff, P.C. Defendant's counsel: Brand, Glick & Brand, P.C.
Unpublished Opinion
Plaintiff's counsel:
Law Offices of Gabriel & Moroff, P.C.
Defendant's counsel:
Brand, Glick & Brand, P.C.
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant's motion for summary judgment dismissing Plaintiff's complaint:
Papers/Numbered
Defendant's Notice of Motion and Affirmation dated October 28, 2019 (" Motion ") and electronically filed with the court on December 1, 2020. 1
Plaintiff's Affirmation in Opposition dated January 13, 2022 (" Opposition ") and electronically filed with the court on the same date. 2
Defendant's Reply Affirmation dated January 13, 2022 (" Reply ") and electronically filed with the court on January 14, 2022. 3
II. Background
In a summons and complaint filed January 22, 2015, nonparty Budget Truck Rental, LLC commenced an action in Supreme Court, New York County against Plaintiff among others who provided medical treatment to nonparty claimant Gourdet for injuries sustained in a vehicle collision (" Supreme Court Action ") (Budget Truck Rental, LLC v Darren T. Mollo, D.C., et al., Sup. Ct. NY County, Index No. 150666/15) (see Motion, Aff. of Hyman, Ex. C). In a summons and complaint filed May 9, 2019 in Queens County Civil Court, Plaintiff sued Defendant insurance company to recover $1,636.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Diallo for injuries sustained in an automobile accident, plus attorneys' fees and statutory interest (see Motion, Hyman Aff., Ex. A). Defendant now moved for summary judgment dismissing Plaintiff's complaint on the ground that Plaintiff's action was barred by res judicata and alternatively that a portion of Plaintiff's claim was partially paid and should be dismissed. Plaintiff opposed Defendant's motion.
III. Discussion
"Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter" (Matter of Hunter, 4 N.Y.3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 N.Y.3d 107, 111 [2021]; Matter of Josey v Goord, 9 N.Y.3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc.3d 127 [A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc.3d 144 [A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). "Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (Simmons v Trans Express Inc., 37 N.Y.3d at 111; O'Brien v City of Syracuse, 54 N.Y.2d 353, 357 [1981], see Matter of Josey v Goord, 9 N.Y.3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 A.D.3d 815, 817 [2d Dept 2020]). In our instant case, res judicata is inapplicable because Defendant, Avis Budget Car Rental, LLC C/O Sedgwick Claims Management Services, has failed to establish that it is the same party as the plaintiff in the Supreme Court Action, which was Budget Truck Rental, LLC (Astoria Landing. Inc. v New York City Council, 186 A.D.3d 1593, 1595 [2d Dept 2020]; Burgos v New York Presbyt. Hosp., 155 A.D.3d 598, 601 [2d Dept 2017]).
Regarding Defendant's alternative basis for dismissing Plaintiff's claim, Defendant relied on a copy of a check for $850.00 payable to "Jules F. Parisien," for which Defendant provided no foundation for its admissibility. Even assuming a proper foundation, the check referenced a claim number that was not legible. In addition, Defendant presented no evidence associating the claim number on the check with Plaintiff's claim. Furthermore, the check did not refer to the date Plaintiff provided medical services to Diallo as alleged in the complaint. Finally, the check did not establish timely payment of the claim as required by the No Fault regulations (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 N.Y.3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 N.Y.3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 N.Y.3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 N.Y.2d 274, 278 [1997]).
CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" (GTF Mktg. v Colonial Aluminum Sales, 66 N.Y.2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 A.D.3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014]). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 N.Y.2d at 968).
Here, Defendant failed to establish its payment or timely payment to Plaintiff as argued. Plaintiff also failed to establish that Plaintiff's action here was barred by res judicata. Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant's Motion without considering Plaintiff's Opposition (see Pullman v Silverman, 28 N.Y.3d 1060, 1062 [2016]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
IV. Order
Accordingly, it is
ORDERED that Defendant's motion for summary judgment dismissing Plaintiff's complaint is denied.
This constitutes the Decision and Order of the court.