Quality Health Supply Corp. v Hertz Co.

[*1] Quality Health Supply Corp. v Hertz Co. 2021 NY Slip Op 50130(U) Decided on February 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1860 K C

Quality Health Supply Corp., as Assignee of Michel, Linda, Appellant,

against

Hertz Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Deena Khalifa of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 6, 2018. The order granted defendant's motion to amend the pleadings and to dismiss the complaint on the ground of res judicata, and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant's motion to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied; as so modified, the order is affirmed, without costs.

Plaintiff Quality Health Supply Corp. (Quality Health) commenced this action against "Hertz Co." to recover assigned first-party no-fault benefits for services provided to plaintiff's assignor, who had allegedly been injured in an accident on July 7, 2015. Prior to the commencement of this action, "Hertz Vehicles, LLC" had brought a declaratory judgment action in the Supreme Court, New York County, against Quality Health and its assignor herein, among other parties, pertaining to the July 7, 2015 accident, and had moved in the Supreme Court for a default judgment against Quality Health and its assignor. In an order entered August 4, 2016, the Supreme Court, upon granting an unopposed motion by Hertz Vehicles, LLC, declared that Hertz Vehicles, LLC was not obligated to pay claims for reimbursement submitted by Quality Health and its assignor. Hertz Co. thereafter moved in the Civil Court for an order, pursuant to CPLR 3025 (c), "amending the named defendant in this action to the proper party, 'Hertz Vehicles, LLC.' " Relying upon the Supreme Court's order, Hertz Co. sought the further relief in the Civil Court of dismissing the complaint on the ground that the present action is barred by the doctrine of res judicata. Plaintiff cross-moved for summary judgment and opposed defendant's motion. Plaintiff appeals from an order of the Civil Court entered February 6, 2018 granting defendant's motion and denying plaintiff's cross motion.

For the reasons stated in Quality Health Supply Corp. v Hertz Co. (68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is modified by providing that Hertz Co.'s motion to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 19, 2021