Loyalty Physical Therapy, P.T., P.C. v Permanent Gen. Assur. Corp.

[*1] Loyalty Physical Therapy, P.T., P.C. v Permanent Gen. Assur. Corp. 2022 NY Slip Op 50049(U) Decided on January 21, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 21, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2019-524 K C

Loyalty Physical Therapy, P.T., P.C., as Assignee of Ernest Frazier, Respondent,

against

Permanent General Assurance Corp., Appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Petre and Associates, P.C. (Damin Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre-Melendez, J.), entered March 1, 2019. The order denied defendant's motion for, in effect, summary judgment dismissing the complaint.

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

Plaintiff Loyalty Physical Therapy, P.T., P.C. (Loyalty) commenced this action against Permanent General Assurance Corp. (Permanent General) to recover assigned first-party no-fault benefits for services that Loyalty had provided to its assignor, Ernest Frazier, who had allegedly sustained injuries in a motor vehicle accident on November 3, 2013. After issue was joined, Permanent General commenced a declaratory judgment action in the Supreme Court, New York County, against, insofar as relevant here, Loyalty and Ernest Frazier, which parties failed to appear or answer in the Supreme Court action. By order entered December 3, 2015, the Supreme Court granted, on default, Permanent General's motion for a default judgment against, among others, Loyalty and Ernest Frazier.

Thereafter, Permanent General moved in the Civil Court for, in effect, summary judgment [*2]dismissing the complaint on the ground that the present Civil Court action is barred under the doctrine of res judicata, as the instant claims had been fully litigated in the Supreme Court. Loyalty opposed the motion. Permanent General appeals from an order of the Civil Court entered March 1, 2019 denying Permanent General's motion.

For the reasons stated in North Valley Med., P.C., as Assignee of Ernest Frazier v Permanent Gen. Assur. Corp. (___ Misc 3d ___, 2022 NY Slip Op _____ [appeal No. 2019-499 K C], decided herewith), the order is reversed and defendant's motion for, in effect, summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 21, 2022