LVOV Acupuncture, P.C. v Mercury Cas. Co.

[*1] LVOV Acupuncture, P.C. v Mercury Cas. Co. 2018 NY Slip Op 51131(U) Decided on July 13, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2016-2112 K C

LVOV Acupuncture, P.C., as Assignee of Shantall Smith, Appellant,

against

Mercury Casualty Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), dated May 27, 2016. The order granted an unnoticed (see CPLR 2211) motion by defendant to dismiss the complaint.

ORDERED that, on the court's own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CCA 1702 [a] [2]; [c]);

and it is further,

ORDERED that the order is reversed, with $30 costs, and defendant's motion to dismiss the complaint is denied.

After plaintiff, LVOV Acupuncture, P.C. (LVOV), commenced this action to recover assigned first-party no-fault benefits, defendant, Mercury Casualty Co. (Mercury), brought a declaratory judgment action in the Supreme Court, Nassau County, against LVOV and its assignor herein, among others, seeking a declaration that, among other things, Mercury has no duty to provide coverage for claims arising out of the accident at issue. Although LVOV served an answer in the Supreme Court action, its assignor did not appear, and, as a result, Mercury moved in the Supreme Court, pursuant to CPLR 3215, for a default judgment against the assignor. In its order dated March 23, 2016, the Supreme Court noted that Mercury had [*2]commenced an action for declaratory relief and that the assignor had failed to file an answer. Consequently, the Supreme Court granted the unopposed motion to enter a default judgment against the assignor. Shortly thereafter, Mercury moved in the Civil Court to dismiss the present complaint on the ground that, in view of the March 23, 2016 Supreme Court order, LVOV's action is barred by the doctrine of res judicata. LVOV opposed Mercury's motion. LVOV appeals from an order of the Civil Court, dated May 27, 2016, which granted Mercury's motion.

For the reasons stated in Jamaica Wellness Med., P.C., as Assignee of Shantall Smith v Mercury Cas. Co. (— Misc 3d &mdash, 2018 NY Slip Op — [appeal No. 2016-2049 K C], decided herewith), the order is reversed and defendant's motion to dismiss the complaint is denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 13, 2018