Opinion
Index No. 753048/18
03-05-2024
Primavera Physical Therapy, P.C., As Assignee of Alejandro, Luis, Plaintiff(s), v. State Farm Insurance Company, Defendant(s).
The Rybak Firm PLLC., New York, for Plaintiff McDonnell Adels & Klestzick PLLC, New York, for Defendant
Unpublished Opinion
The Rybak Firm PLLC., New York, for Plaintiff
McDonnell Adels & Klestzick PLLC, New York, for Defendant
Sandra E. Roper, J.
Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:
Papers
Notice of Motion and Affidavits Annexed 1-2
Answering Affidavits
Replying Affidavits
Exhibits
Other
Upon the foregoing cited papers after oral arguments made on the record, the Decision and Order for Plaintiff's motion to compel discovery pursuant to CPLR 3124 is hereby deemed MOOT, and Defendant's Cross-Motion to dismiss and for summary judgment pursuant to CPLR 3211(a)(5) and 3212 is hereby GRANTED as follows:
This Court dismisses Plaintiff's complaint as the instant action is barred under the doctrines of res judicata and collateral estoppel by Declaratory Judgment granted on default in the Supreme Court, County of Nassau, by The Honorable R. Bruce Cozzens, Jr., State Farm Fire and Casualty Insurance Company v. Luis Alejandro, et. al., under Index No. 615595/18. This Court takes judicial notice of this Declaratory Judgment which declared, inter alia, Plaintiff/Provider has no right to payment for No-Fault claims for the underlying accident of September 5, 2017, as the underlying loss was an intentional act, staged accident, for which there is no coverage. There are identical parties and date of accident with this instant matter. It is of no moment that there is no specific claim number included in the DJ, as Plaintiff/Provider argues as a dispositive omission. Further, Plaintiff/Provider's argument of prejudice by ambush of the untimeliness of the DJ as procedurally improper is not compelling and thereby rejected for the purposes of Plaintiff's application for an adjournment. Plaintiff/Provider and individual EIP/assignor had full, ample, and unfettered opportunity to engage in the defense in the DJ action but chose not to so do and therefore may not do so in this forum, which is a court of limited jurisdiction that does not sit as a Court of Equity. This Court is mandated and shall take judicial notice Sua Sponte of any DJ actions duly entered in courts of superior jurisdiction, as is herein, that may be attendant or relevant to the instant action before it, from any source during its deliberation, whether neither party brings it to This Court's attention. For the foregoing reasons, this case is dismissed pursuant to the Doctrines of Res Judicata and Collateral Estoppel.
This constitutes the Decision and Order of This Court.