Support Billing & Mgt. Co. v State Farm Mut. Ins. Co.

[*1] Support Billing & Mgt. Co. v State Farm Mut. Ins. Co. 2008 NY Slip Op 52226(U) [21 Misc 3d 136(A)] [21 Misc 3d 136(A)] Decided on October 30, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 30, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1725 Q C.

Support Billing & Management Co. a/a/o DANIEL TAVERAS, Appellant,

against

State Farm Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 3, 2007, deemed from a judgment of the same court entered October 29, 2007 (see CPLR 5520 [c]). The judgment, entered pursuant to the May 3, 2007 order granting defendant's motion to dismiss, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover first-party no-fault benefits for medical supplies furnished to its assignor, defendant moved for an order, pursuant to CPLR 3211 (a) (5) and (7), dismissing the complaint because a stipulation of discontinuance "with prejudice" had been executed by the parties in a prior action, brought under a different index number, involving the same assignor and the identical no-fault claims and claim denial forms. Plaintiff opposed, contending that it had never had an opportunity to fully litigate the merits of the discontinued action. The court below granted the motion to dismiss, and this appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

A stipulation of discontinuance which specifies that it is "with prejudice" raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440 [2006]; Singleton Mgt. v Compere, 243 AD2d 213, 216 [1998]). Plaintiff herein has not denied that the cause of action in the discontinued case is identical to the cause of [*2]action in the instant case. Nor did the stipulation executed in the discontinued action contain any explicit exception permitting the instant action to continue (see Biggs v O'Neill, 41 AD3d 1067 [2007]). There is nothing in the record before us to reflect that the parties, at the time of execution of the stipulation, intended that the stipulation not have res judicata effect.

We note that plaintiff has raised arguments on the appeal based upon factual allegations which were not presented to the court below. This court will not consider
matters which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). For the foregoing reasons, defendant's motion to dismiss the instant complaint was properly granted and, accordingly, the judgment is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008