Vital Meridian Acupuncture, P.C. v American Tr. Ins. Co.

[*1] Vital Meridian Acupuncture, P.C. v American Tr. Ins. Co. 2015 NY Slip Op 51078(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-1455 K C

Vital Meridian Acupuncture, P.C. as Assignee of JOSE FERNANDEZ PEREZ, Appellant,

against

American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 1, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order 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 April 25, 2011, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, contending that plaintiff's cause of action is barred by virtue of a default judgment in a Supreme Court declaratory judgment action. Plaintiff appeals from an order of the Civil Court denying its motion and granting defendant's cross motion.

The record indicates that defendant commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff and a number of other providers, as well as the allegedly injured assignor. In a judgment entered on default on December 4, 2012, the Supreme Court declared that plaintiff, among others, was not entitled to recover no-fault benefits arising out of the accident on April 25, 2011. 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 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 is affirmed.

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

Decision Date: July 14, 2015