Allay Med. Servs., P.C. v Nationwide Ins.

[*1] Allay Med. Servs., P.C. v Nationwide Ins. 2021 NY Slip Op 50087(U) Decided on February 5, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-1185 K C

Allay Medical Services, P.C., as Assignee of Miller, Nichole, Respondent,

against

Nationwide Ins., Appellant.

Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered May 31, 2019. The order, insofar as appealed from as limited by the brief, denied defendant's motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for, in effect, summary judgment dismissing the complaint is granted.

Plaintiff Allay Medical Services, P.C. (Allay) commenced this action on June 1, 2016 to recover assigned first-party no-fault benefits for injuries sustained by "Miller, Nichole" in an accident on October 31, 2015, the complaint stating that claim number 363323-GC had been assigned to the matter. Defendant Nationwide Ins. (Nationwide) served an answer and, thereafter, moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff's action was barred, insofar as is relevant, under the doctrine of res judicata, by an order and judgment in a Supreme Court declaratory judgment action. The Supreme Court order and judgment, entered April 25, 2016 upon the default of Allay in opposing a motion by Nationwide, declared that Nationwide was "under no obligation to pay any of the claims identified in Exhibit 1 to the Complaint." Among other things, Exhibit 1 identified claim number 363323-GC and an accident on October 31, 2015, and listed the eligible injured person as having the initials N.M. Plaintiff opposed defendant's motion in the Civil Court. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered May 31, 2019 as denied the motion.

For the reasons stated in Allay Med. Servs., as Assignee of Diop, Gregoria v Nationwide Ins. (— Misc 3d &mdash, 2021 NY Slip Op _____ [appeal No. 2019-1180 K C], decided herewith), the order, insofar as appealed from, is reversed, and defendant's motion for, in effect, summary judgment dismissing the complaint is granted.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 5, 2021