Delta Diagnostic Radiology, P.C. v Hertz Co.

[*1] Delta Diagnostic Radiology, P.C. v Hertz Co. 2015 NY Slip Op 51050(U) Decided on July 7, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., SOLOMON and ELLIOT, JJ.
2013-2433 K C

Delta Diagnostic Radiology, P.C. as Assignee of GIANFRANCO LOPRESTI, Appellant, July 7, 2015

against

Hertz Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 1, 2013. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, with $25 costs.

Delta Diagnostic Radiology, P.C. (Delta) commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries allegedly sustained in a motor vehicle accident on July 7, 2009. While this no-fault action was pending, Hertz Co. (Hertz) commenced a declaratory judgment action in the Supreme Court, New York County, on March 5, 2010 against Delta, eight other providers, and the injured assignor, alleging that the providers had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath. A declaratory judgment was entered on default in the Supreme Court on April 22, 2011, declaring that Hertz "is not obligated to provide insurance coverage" to Delta or the other named providers for "expenses" arising out of the July 7, 2009 collision involving Delta's assignor. Thereafter, Hertz moved in the Civil Court to dismiss Delta's action, pursuant to CPLR 3211 (a) (5), contending that this action is barred by virtue of the declaratory judgment. By order entered August 1, 2013, the Civil Court granted defendant's motion, and we affirm.

In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). The declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; EBM Med. Health Care, P.C., 38 Misc 3d at 3). Plaintiff's [*2]remaining contention is unpreserved for appellate review (see Buck Realty of Long Is., Inc. v Elliott, 106 AD3d 768 [2013]; DeLeon v New York City Tr. Auth., 5 AD3d 531 [2004]).

Accordingly, the order is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.

Decision Date: July 07, 2015