Opinion
02-25-2022
Spine Care of NJ, P.C., as Assignee of Merlande Pierre, Respondent, v. State Farm Mutual Automobile Ins. Co. PIP/BI, Appellant.
McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Unpublished Opinion
McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered August 6, 2020. 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 affirmed, with $25 costs.
Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor as a result of injuries sustained in an automobile accident. The complaint states that the assignor "was injured in a motor vehicle accident on or about 5/10/2017." Defendant moved to dismiss the complaint, contending that plaintiff's action was barred by virtue of an order granting defendant's motion to enter a default judgment against, among others, plaintiff and its assignor in a Supreme Court declaratory judgment action commenced by defendant seeking, among other things, a declaratory judgment that the accident was staged and that defendant had no obligation to pay no-fault benefits in connection with the accident. In support of its motion, defendant submitted, among other things, the complaint in this Civil Court action and the complaint filed in the Supreme Court action, the latter of which, however, lists a date of accident of May 9, 2017. By order entered August 6, 2020, the Civil Court, among other things, upon treating defendant's instant motion as one for summary judgment dismissing the complaint, denied defendant's motion.
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). Res judicata, or claim preclusion, may be invoked where a party seeks to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which had been raised or could have been raised in a prior litigation (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Albanez v Charles, 134 A.D.3d 657 [2015]; Eagle Surgical Supply, Inc. v AIG Ins. Co., 40 Misc.3d 139 [A], 2013 NY Slip Op 51449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
Here, defendant's own papers presented two different accident dates, May 9, 2017 and May 10, 2017, without any explanation for the discrepancy. Thus, defendant's papers failed to make a prima facie showing of its entitlement to summary judgment based on res judicata, as defendant failed to show that its claim arose out of the same transaction as was in controversy in the Supreme Court litigation (see Hu-Nam-Nam v Allstate Ins. Co., 55 Misc.3d 146 [A], 2017 NY Slip Op 50685[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 50 Misc.3d 145 [A], 2016 NY Slip Op 50259[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Eagle Surgical Supply, Inc. v AIG Ins. Co., 2013 NY Slip Op 51449[U]).
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., WESTON and GOLIA, JJ., concur.