Huntington Med. Plaza, P.C. v Travelers Indem. Compan

[*1] Huntington Med. Plaza, P.C. v Travelers Indem. Compan 2014 NY Slip Op 50527(U) Decided on March 21, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT:: ALIOTTA, J.P., PESCE and WESTON, JJ
2012-1060 Q C.

Huntington Medical Plaza, P.C. as Assignee of BRENDA BORJA-RAMIREZ and ISLAND REGIONAL CHIROPRACTIC, P.C. as Assignee of BRENDA BORJA-RAMIREZ, Respondents,

against

Travelers Indemnity CompanY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.; op 34 Misc 3d 874), entered December 30, 2011. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for, among other things, summary judgment dismissing the complaint, asserting that plaintiffs were collaterally estopped from asserting that the services provided were medically necessary. The Civil Court denied that branch of defendant's motion (see 34 Misc 3d 874 [2011]), and defendant appeals.

In support of the claim of collateral estoppel, defendant alleged that there were two prior cases, each involving both of the same plaintiffs, as well as the same assignor, the same defendant and the same accident. In those cases, as in the instant case, plaintiffs' claims had been denied based on two independent medical examinations (IMEs), both conducted on April 16, 2008, finding that the assignor needed no further treatment. The two prior cases, involving treatments rendered from July 2008 to February 2009, went to a joint trial, at which defendant's IME doctors testified as to their conclusions that the assignor's injuries had resolved and that the assignor needed no further treatment. Plaintiffs put on no rebuttal witnesses in that case. After the trial, according to a decision on the record submitted by defendant in support of its motion, the court found in favor of defendant, but made no specific factual findings.

Based on the foregoing, defendant argued, plaintiffs were collaterally estopped from contending that the September 2009 to December 2009 treatments at issue in this case were medically necessary. The Civil Court, noting that the treatments at issue in this case had been rendered after the treatments at issue in the prior trial, found that collateral estoppel did not apply, stating: "However, while [the court in the prior trial] found that the particular services billed for in the prior actions were not medically necessary, they were performed on dates other than those claimed in this action. As counsel for plaintiffs noted in her amended affirmation in opposition, a patient's condition can wax and wane after a motor vehicle accident, so even if the prior trial determined that the services rendered on those particular dates in dispute in that case were not medically necessary, it would not have any bearing on the dates of service at issue here' " (34 Misc 3d 874, 877).[*2]
Accordingly, the court denied the branch of defendant's motion seeking summary judgment. We affirm.

At the outset, we note that defendant attached only a decision after trial from the prior cases, and did not attach a judgment from either case. "As a general rule the res judicata doctrine—collateral estoppel included for this purpose—requires a final judgment on the merits. It has been said, therefore, that a verdict or decision not reduced to judgment will not do" (Siegel, NY Prac § 444 [5th ed 2013]; see Carmody-Wait 2d § 63:480; see also Egbert Sq. Realty, LLC v 112-114 Corp., 93 AD3d 687 [2012]; Jespersen v Li Sheng Liang, 68 AD3d 724 [2009]; Berkshire Nursing Ctr. v Len Realty Co., 168 AD2d 475 [1990]; Mandracchia v Russo, 53 Misc 2d 1018 [App Term, 2d Dept 1967]). It is also noted that the documents submitted by defendant did not establish that plaintiff Island Regional Chiropractic, P.C. was a named plaintiff in the prior two cases. However, even assuming that the procedural elements for the application of the doctrine of collateral estoppel had been met here, we agree with the Civil Court that, under the facts presented, defendant would not be entitled to summary judgment based on collateral estoppel.

Part of defendant's argument is, in effect, that the prior trial conclusively established that the assignor had no accident-related disability on the date of the IME and on the dates of the treatments at issue in the first trial. However, we do not need to reach whether those facts have been established for purposes of collateral estoppel, because those facts are not determinative in this action. The decision in the prior actions was presumably based on a finding that the treatments at issue in those cases were not medically necessary. However, the court in those cases did not find that no post-IME complaints or disability could be attributable to the accident in question (compare Barnett v Ives, 265 AD2d 865 [1999]), or that the assignor's condition could not have worsened either after the IME or after the treatments at issue therein, nor were such findings necessary to the court's decision. Indeed, as plaintiffs note, one of defendant's
doctors agreed at the prior trial that a patient can have good and bad days. And, in this case, plaintiffs submitted, in opposition to defendant's motion, affidavits from two doctors, which indicated that, after the treatments at issue in the prior cases, the assignor's treating doctors had found disability (including findings of spasm) warranting further treatment. As the Civil Court stated, one of those doctors specifically noted that a person's condition can "wax and wane" after a motor vehicle accident and that, therefore, a finding that the treatments at issue in the prior cases were not medically necessary does not conclusively prove that the treatments at issue in this case were not medically necessary.

In these circumstances, we find that the branch of defendant's motion seeking summary judgment dismissing the complaint was properly denied. Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: March 21, 2014