Andrew Carothers, M.D., P.C. v MTA Bus Co.

[*1] Andrew Carothers, M.D., P.C. v MTA Bus Co. 2009 NY Slip Op 51216(U) [24 Misc 3d 1201(A)] Decided on June 16, 2009 Civil Court Of The City Of New York, Kings County Edwards, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 16, 2009
Civil Court of the City of New York, Kings County

Andrew Carothers, M.D., P.C. a/a/o I IGNACIO ESGUERRA, Plaintiff,

against

MTA Bus Company, Defendant.



112648/07



Movant: Jones, Jones, O'Connell LLP, Attorneys for MTA, 45 Main Street, Suite 1101, Brooklyn, NY 11201, 718.222.8880, by Sara Pankowski-Diamond.

Adversary: Subin Associates, LLP, 459 Columbus Avenue, Suite 510, New York City 10024, 212.831.1340, by Asya Domashitsky.

Genine D. Edwards, J.

In this action, plaintiff seeks to recover first-party no-fault benefits from defendant in the amount of $1,066.46, for medical services allegedly provided to its assignor, Ignacio Esguerra. Defendant now moves for summary judgment. Plaintiff opposes the motion.

BACKGROUND

On June 24, 2006, plaintiff allegedly rendered medical services to Ignacio Esguerra for injuries resulting from an automobile accident. Esguerra assigned his no-fault benefits concerning such services to plaintiff. In turn, plaintiff submitted a bill in the amount of $1,066.46 to defendant, but the bill was not paid.

On September 4, 2007, plaintiff commenced this action. Defendant filed an answer on December 11, 2007. It alleged numerous defenses, including the defense of fraudulent incorporation.

Thereafter, plaintiff litigated an action in Richmond County Civil Court involving different defendants, but the same issue — fraudulent incorporation. A unanimous jury found, by clear and convincing evidence, that Andrew Carothers, M.D., P.C. was fraudulently incorporated. That jury also found, by clear and convincing evidence, that Dr. Andrew Carothers did not engage in the practice of medicine for Andrew Carothers, M.D. P.C. during the years 2005 and 2006.

LAW [*2]

"The proponent of a summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence, in admissible form, to demonstrate the absence of any material issues of fact.'" See St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611, 821 NYS2d 471 (2d Dept. 2006). See also Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 (1986). The motion shall be supported by an affidavit from a person with knowledge of the facts. See CPLR 3212(b). "If, in opposing the motion, the other party comes forward with evidence of issues of fact requiring a trial, the motion will be denied." Vista Surgical Supplies, Inc. v. Utica Mut. Ins. Co., 7 Misc 3d 833, 795 NYS2d 853 (Civ. Ct. Kings County 2005).

Defendant asserts that plaintiff should be collaterally estopped from relitigating the issue of fraudulent incorporation. "The doctrine of collateral estoppel bars a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same.'" Chiara v. Town of New Castle, 61 AD3d 915, 878 NYS2d 755 (2d Dept. 2009) (quoting Ryan v. New York Tel. Co., 62 NY2d 494, 500, 478 NYS2d 823 (1984)). Collateral estoppel applies when two conditions are met: "(1) the issue sought to be precluded is identical to a material issue necessarily decided . . . in a prior proceeding; and (2) there was a full and fair opportunity to contest this issue in the [prior proceeding]." Jeffreys v. Griffin, 1 NY3d 34, 769 NYS2d 184 (2003). "The proponent of collateral estoppel must show identity of the issue, while the opponent must demonstrate the absence of a full and fair opportunity to litigate." Id. See also D'Arata v. New York Cent. Mut. Fire. Ins. Co., 76 NY2d 659, 563 NYS2d 24 (1990); Uptodate Med. Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, __ NYS2d __ (App. Term, 2d, 11th & 13th Jud. Dists. 2009)

In determining whether an issue [is identical], it must be remembered that it is the judgment in the prior action that acts as a bar-" [n]either the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action . . . constitute a bar, unless followed by a judgment based thereon, or into which the verdict or findings entered'" (Peterson v Forkey, 50 AD2d 774, 774-775 [1975], quoting Rudd v Cornell, 171 NY 114, 128-129 [1902]). Thus, when no . . . final judgment has been entered on a verdict . . . collateral estoppel is inapplicable (see e.g. City of New York v State of New York, 284 AD2d 255, 255 [2001]; Towne v Asadourian, 277 AD2d 800, 801 [2000]; Ruben v American & Foreign Ins. Co., 185 AD2d 63, 65 [1992]; Peterson v Forkey, supra at 775).[FN1]

Church v. New York State Thruway Auth., 16 AD3d 808, 791 NYS2d 676 (3d Dept. 2005). See also New York Cent. Mut. Fire Ins. Co. v. Huntington Orange & White Taxi, Inc., 17 Misc 3d 1136(A), 851 NYS2d 71 (Dist. Ct. Suffolk County 2007); Begelman v. Begelman,170 AD2d [*3]562, 566 NYS2d 337 (2d Dept. 1991); Ott v. Barash, 109 AD2d 254, 491 NYS2d 661 (2d Dept. 1985); Mandracchia v. Russo, 53 Misc 2d 1018, 280 NYS2d 429 (2d Dept. 1967); Peterson v. Forkey, 50 AD2d 774, 376 NYS2d 560 (1st Dept. 1975)..

FINDING

Here, defendant failed to establish that a final judgment was entered in the prior action. Therefore, it may not rely upon the doctrine of collateral estoppel to bar the present action.

Accordingly, defendant's motion for summary judgment is denied. The parties are directed

to proceed to trial.

This constitutes the decision and order of the Court.

Date: June 16, 2009_________________________

Genine D. Edwards

Judge of the Civil Court Footnotes

Footnote 1: Further, a judgment is not given preclusive effect unless it is raised either in the defendant's answer or by a motion to dismiss made before service of a responsive pleading is required. In the absence of a motion or assertion of the defense, such defense is waived. See CPLR 3211(a)(5); Krekeler v. Ritter, 62 NY 372 (1875); Rienzi v. Rienzi, 23 AD3d 450, 808 NYS2d 116 (2d Dept. 2005); Pace v. Perk, 81 AD2d 444, 440 NYS2d 710 (2d Dept. 1981); Halladay v. Kolner, 276 A.D. 943, 94 NYS2d 886 (4th Dept. 1950); Lazzarino v. Warner Bros. Entertainment, Inc., 2008 NY Slip Op. 32691(U) (Sup. Ct. New York County 2008).