Choicenet Chiropractic, P.C. v Clarendon Ins. Co.

[*1] Choicenet Chiropractic, P.C. v Clarendon Ins. Co. 2009 NY Slip Op 51472(U) [24 Misc 3d 1216(A)] Decided on June 30, 2009 Civil Court Of The City Of New York, Richmond County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
Civil Court of the City of New York, Richmond County

Choicenet Chiropractic, P.C. As Assignee of Juan Silvestre, Plaintiff,

against

Clarendon Insurance Company, Defendant.



2349/08

Katherine A. Levine, J.

Plaintiff's motion for summary judgment is denied and defendant's cross-motion

for summary judgment is granted.

Defendant Clarendon Insurance Company ("Clarendon") has submitted uncontroverted proof that plaintiff Choice net Chiropractic P.C. ("Plaintiff" or "Choicenet") as assignee of the assignor Juan Silvestre ( "assignor") brought the exact same action, i.e. for medical services provided to the same assignor on the same date and for the same amount as contained in the instant matter - in Civil Court, Bronx County It also submitted an order from Bronx Civil Court ( ( Hon. Nelida Malave) dated September 7, 2005 which states that defendant's motion for summary judgment is granted on default on the grounds that plaintiff is precluded from offering evidence upon trial. Defendant contends that this mandates dismissal of the instant since the Order of Judge Malave is controlling under the doctrine of res judicata.. Defendant also contends that although Judge Malave's order dismissing the prior action did not specifically state "dismissed with prejudice", or "on the merits". The dismissal had to be construed as with prejudice since the underlying discovery order in Bronx County provided for preclusion, citing First Help Acupuncture, P.C., a/a/o/ Simone Brin v State Farm Mutual Automobile Ins. Co. 2008 NY Slip Op 51266(U).

Plaintiff opposes this motion, contending that pursuant to CPLR 5013, a judgment dismissing an action before the close of the proponent's evidence is not a dismissal on the merits and that it therefore is not barred from bringing the instant action.

The doctrine of res judicata serves to preclude a party from relitigating issues of fact and law decided in a prior proceeding. Gramatan Home Investors v Lopez, 46 NY2d 481 (1979); [*2]Rosen v. Levy, 19 Misc 3d 1101(A), 2008 NY Slip Op. 50467U (Sup. Ct., Bronx Co. 2008).

The doctrine of res judicata "operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding" Luscher v. Arrua, 21 AD3d 1005 (2nd Dept. 2005); Koether v Generalow , 213 AD2d 379, 380(1st dept. 1995). Res judicata will only apply if there has been a final judgment on the merits. However, "(t)his form of claim preclusion applies to all issues and theories of recovery applicable to the cause of action, whether or not they were actually litigation". Alphonso Lewis v. City of New York, 17 Misc 3d 537, 541-42 (Sup. Ct., Bronx Co. 2007).

Collateral estoppel, or issue preclusion, is a corollary to the doctrine or res judicata and "bars the relitigation of an issue (as distinguished from the action or claim) which was actually and necessarily previously decided in a prior proceeding". Alphonso Lewis, supra at 542. See, Ryan v. New York Tel. Co., 62 NY2d 494 (1984). Under New York law, "collateral estoppel effect will only be given to matters actually litigated and determined in a prior action" Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 (1985). See also Koch v Consolidated Edison Co., 62 NY2d 548, 554,; Restatement [Second] of Judgments § 27). An issue is not actually litigated if "there has been a default, a confession of liability, a failure to provide discovery, a failure to place a matter in issue by proper pleading or even because of a stipulation" (Kaufman,supra at 456, 457. See, Mtr. Of Samuel A. Abady, 22 AD3d 71, 83, and therefore a dismissal on these grounds will not usually be on the merits so as to bar a subsequent identical action. Rosen v. Levy, supra at 4.

However, despite the aforementioned general rule, the courts have carved out a narrow exception for a dismissal of the prior action on the grounds of non-compliance with discovery and certain courts orders where the prior dismissal was preceded by an order of preclusion. Aguilar v. Jacoby, 34 AD3d 706,707 (2d Dept. 2006); Stray v. Lutz, 306 AD2d 836 (4th Dept. 2003) A limited exception applies "where the party against whom collateral estoppel is sought to be invoked has appeared in the prior action or proceeding and has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request." Mtr. Of Abady, supra at 83-84. See, Kalinka v. St. Francis Hospital, 34 A.D 3d 742,744 (2d Dept. 2006) (Dismissal of prior action properly given res judicata effect in this action where dismissal in prior action was upon the grant of an order of preclusion after court determined that Kalinka willfully and contumaciously failed to comply with disclosure);Kanat v Ochsner, 301 AD2d 456, 458 (1st dept. 2003); Matter of Latimore, 252 AD2d at 219,220.

In Kanat (supra), the defendants were previously sued in Massachusetts for breach of fiduciary duty and, failed to comply with numerous discovery requests resulting in a default judgment on liability. The Kanat plaintiff thereafter commenced an action in New York alleging similar claims and sought to collaterally estop the defendants from relitigating the issues adjudicated against them in the Massachusetts action. In affirming the trial court's application of collateral estoppel based on the default judgment, the First Department stated): [*3] "Although collateral estoppel is generally not available where the judgment in the prior action was obtained on default, such is not the case here. It is undisputed that defendants appeared and answered in the Massachusetts action and engaged in extensive motion practice caused for the most part by defendants' willful and contumacious pattern of selective, partial responses to various pretrial discovery demands. Defendants therein had a full and fair opportunity to fully litigate the underlying merits of the Massachusetts action, but affirmatively chose not to by their own failure to comply with court orders. Defendants therein charted the course of their own litigation, engaging in conduct intentionally calculated to frustrate and impede the court to whose jurisdiction they submitted by their general appearance and by interposing an answer.":

301 AD2d at 458.

Similarly, in the instant matter, plaintiff had a full and fair opportunity to litigate the underlying merits of its claim against defendant in Civil Court, Bronx County but chose, by its own conduct to frustrate and impede the process by refusing to comply with the court's discovery order which resulted in preclusion. As such, under the aforementioned precedent, the doctrine of res judicata precludes plaintiff from relitigating the identical case.

Plaintiff's contention that since the Bronx Civil Court judgment did not dismiss the case "on its merits", this court is precluded from doing the same is incorrect. In Strange v. Montefiore Hospital, 59 NY2d 737 (1983), the Court of Appeals dismissed the exact argument now made by plaintiff. The Court declared that although the judgment of the lower court did not specifically recite "on the merits' "that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree. Id at 739. See, Barrett v. Kasco Constr. Co., 56 NY2d 830, 831 ( 19 ). Nor did the prior judgment have to contain the words on the merits' in order to be given res judicata effect, as "one would not expect to find any such explicit recital in a judgment of dismissal based on a grant of summary judgment for

insufficiency of proof, as occurred here". 59 NY2d at 738.

In light of the above, defendant's motion for summary judgment dismissing the complaint is granted.

DATED: June, 2009

KATHERINE A. LEVINE

Judge, Civil Court