Eagle Surgical Supply, Inc. v AIG Ins. Co.

[*1] Eagle Surgical Supply, Inc. v AIG Ins. Co. 2013 NY Slip Op 51449(U) Decided on August 21, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2012-482 K C.

Eagle Surgical Supply, Inc. as Assignee of FELISSAINT GISELAINE, Respondent,

against

AIG Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 5, 2011. The order denied defendant's motion to vacate a judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, among other things, that plaintiff was not entitled to no-fault benefits because neither plaintiff nor its assignor had appeared for examinations under oath. By order dated September 29, 2008, the Civil Court granted plaintiff's motion, finding that defendant had failed to rebut plaintiff's prima facie case, and awarded plaintiff the principal sum of $502.63. Thereafter, on a date not disclosed in this record, defendant commenced an action in the Supreme Court, Nassau County, for a declaratory judgment against plaintiff, its assignor, and others. On June 3, 2010, the Supreme Court awarded defendant a default declaratory judgment which found, among other things, that since plaintiff and its assignor had "violated their respective obligation [sic] to appear for an examination under oath . . . [defendant] has no duty to defend or indemnify the [plaintiff and its assignor] . . . for any claims of personal injury, no-fault, UM or SUM benefits" for motor vehicle accidents occurring on specified dates. In 2011, a judgment was entered in favor of plaintiff in the Civil Court action. Defendant subsequently moved to vacate the Civil Court judgment, pursuant to CPLR 5015 (a) (3), due to "the fraud perpetrated by the assignor with respect to this claim." Defendant also argued that the Civil Court must give full effect to the declaratory judgment based on res judicata. The Civil Court, by order entered October 5, 2011, denied defendant's motion.

The doctrine of res judicata is designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 747 [4th ed]). Res judicata, or claim preclusion, is invoked when a party, or those in privity with the party, seek to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction or series of transactions which were raised or could have been raised in the prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). The instant Civil [*2]Court action was commenced to recover no-fault benefits for services plaintiff had provided to its assignor for injuries the assignor had sustained in a motor vehicle accident on May 31, 2007. The declaratory judgment states that it applies to 28 incidents, and lists the dates of the incidents. However, May 31, 2007 is not included in the declaratory judgment action among the dates set forth therein. Therefore, defendant has not shown that plaintiff, by entering judgment in the Civil Court action, seeks to relitigate claims or causes of action arising out of the same transaction or series of transactions (see Matter of Hunter, 4 AD3d at 269).

Accordingly, the order is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: August 21, 2013