Hillside Open MRI, P.C. v USAA Gen. Ins. Co.

[*1] Hillside Open MRI, P.C. v USAA Gen. Ins. Co. 2015 NY Slip Op 51620(U) Decided on November 9, 2015 District Court Of Nassau County, First District Muscarella, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2015
District Court of Nassau County, First District

Hillside Open MRI, P.C. As Assignee of SAKEENA CARTER, Plaintiff(s),

against

USAA General Insurance Company, Defendant(s).



CV-032833-12



Russell Friedman & Associates, LLP, Attorney for Plaintiff, 3000 Marcus Ave. Suite 2E1, Lake Success, NY 11042

McDonell & Adels, PLLC, Attorney for Defendants, 401 Franklin Ave., Garden City, New York 11530
Ignatius L. Muscarella, J.

The instant action was commenced by the plaintiff on October 4, 2012, seeking $879.73 for health services provided to Sakeena Carter, as a result of injuries allegedly sustained in an automobile accident on December 18, 2010. In December 2012, defendant USAA commenced an action in Supreme Court, Kings County, seeking a declaratory judgment, claiming that certain specified motor vehicle accidents were uncovered events. In September 2013, Hon. Fred Hirsh issued an order staying this action, pending a final determination of the declaratory judgment action. Thereafter, a judgment was issued in the Supreme Court action upon default of the parties, wherein it was determined that, inter alia, the accident on December 18, 2010 was an intentional and uncovered event, and that USAA had no duty to provide no-fault coverage for same.

Plaintiff Hillside Open MRI, PC and its assignor, Sakeena Carter, were both named in the declaratory judgment action. However, it was noted on the order that "[t]his defendant [Sakeena Carter] has not been served with the Summons and Complaint. Plaintiff is seeking court permission to serve via publication." The court [*2]ordered "that USAA is granted an extension of time to effectuate substituted service via publication upon the following defendants: Sakeena Carter, ...." In a footnote on page 3 of the defendant's current reply papers, it is stated that the defendant's motion for a default judgment against Sakeena Carter, who was allegedly served via publication, is returnable in Supreme Court on September 18, 2015. This court has no information regarding the status of that matter.

The defendant presently seeks an order granting summary judgment dismissing the plaintiff's complaint pursuant to CPLR 3212(a), on the ground that it has previously been determined that the plaintiff is not entitled to recover and is, therefore, collaterally estopped from relitigating the issue of coverage.

Under the particular circumstances presented here, the defendant's motion is granted to the extent that the parties are directed to appear for a Conference before this court at 99 Main Street, Hempstead, NY atA.M. on theday of, 2015.

The foregoing constitutes the decision and order of the court.

SO ORDERED:

Hon. Ignatius L. Muscarella

District Court Judge

Dated: November 9, 2015

cc:Friedman, Harfenist, Kraut & Perlstein, Esqs.

McDonnell & Adels, PLLC

ILM:jc