Great Health Care Chiropractic, P.C. v Progressive Ins. Co.

[*1] Great Health Care Chiropractic, P.C. v Progressive Ins. Co. 2015 NY Slip Op 51077(U) Decided on July 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2013-1283 K C

Great Health Care Chiropractic, P.C. as Assignee of ANTHONY MATHEWS, Appellant,

against

Progressive Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 29, 2013. The order, insofar as appealed from, upon granting the branch of defendant's motion seeking to consolidate three actions for purposes of disposition of the branch of defendant's motion seeking summary judgment dismissing the complaints therein, granted the branch of defendant's motion seeking summary judgment dismissing the complaint in the above-captioned action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident on February 19, 2011, defendant moved to consolidate the instant action with two other actions and for summary judgment dismissing the complaint in each of the three actions, contending that each action is barred by virtue of a default judgment in a Supreme Court declaratory judgment action. Plaintiff appeals from so much of an order of the Civil Court as, upon consolidating the three actions for purposes of disposition of the motion, granted the branch of defendant's motion seeking summary judgment dismissing the complaint in the above-captioned action.

The record indicates that defendant commenced a declaratory judgment action in Supreme Court, Nassau County, against plaintiff and a number of other providers, as well as a number of allegedly injured assignors, asserting a fraudulent insurance scheme involving three separate car accidents, including the accident on February 19, 2011. In a judgment entered on default on April 16, 2012, the Supreme Court declared that plaintiff and a number of other providers were not entitled to recover no-fault benefits arising out of the three accidents. In light of the default 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]), 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 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]). "[A] declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata [*2]applies to a judgment taken by default which [as in the present case] has not been vacated" (EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d at 3).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: July 14, 2015