Parisien v Avis Budget Car Rental, LLC

[*1] Parisien v Avis Budget Car Rental, LLC 2022 NY Slip Op 50883(U) Decided on September 19, 2022 Civil Court Of The City Of New York, Queens County Li, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2022
Civil Court of the City of New York, Queens County

Julius Francois Parisien, M.D. As Assignee of Diallo, Plaintiff(s),

against

Avis Budget Car Rental, LLC C/O Sedgwick Claims Management Services, Defendant(s).



Index No. CV-717121-19/QU


Plaintiff's counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Center, NY 11570

Defendant's counsel:
Brand, Glick & Brand, P.C.
600 Old Country Road, Suite 440
Garden City, NY 11530 Wendy Changyong Li, J. I. Papers

The following papers were read on Defendant's motion for summary judgment [*2]dismissing Plaintiff's complaint:

Papers Numbered
Defendant's Notice of Motion and Affirmation dated October 28, 2019 ("Motion") and electronically filed with the court on December 1, 2020. 1
Plaintiff's Affirmation in Opposition dated January 13, 2022 ("Opposition") and electronically filed with the court on the same date. 2
Defendant's Reply Affirmation dated January 13, 2022 ("Reply") and electronically filed with the court on January 14, 2022. 3 II. Background

In a summons and complaint filed January 22, 2015, nonparty Budget Truck Rental, LLC commenced an action in Supreme Court, New York County against Plaintiff among others who provided medical treatment to nonparty claimant Gourdet for injuries sustained in a vehicle collision ("Supreme Court Action") (Budget Truck Rental, LLC v Darren T. Mollo, D.C., et al., Sup. Ct. NY County, Index No. 150666/15) (see Motion, Aff. of Hyman, Ex. C). In a summons and complaint filed May 9, 2019 in Queens County Civil Court, Plaintiff sued Defendant insurance company to recover $1,636.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Diallo for injuries sustained in an automobile accident, plus attorneys' fees and statutory interest (see Motion, Hyman Aff., Ex. A). Defendant now moved for summary judgment dismissing Plaintiff's complaint on the ground that Plaintiff's action was barred by res judicata and alternatively that a portion of Plaintiff's claim was partially paid and should be dismissed. Plaintiff opposed Defendant's motion.

III. Discussion

"Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter" (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). "Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (Simmons v Trans Express Inc., 37 NY3d at 111; O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). In our instant case, res judicata is inapplicable because Defendant, Avis Budget Car Rental, LLC C/O Sedgwick Claims Management Services, has failed to establish that it is the same party as the plaintiff in the Supreme Court Action, which was Budget Truck Rental, LLC (Astoria Landing. Inc. v New York City Council, 186 AD3d 1593, 1595 [2d Dept 2020]; Burgos v New York Presbyt. Hosp., 155 AD3d 598, 601 [2d Dept 2017]).

Regarding Defendant's alternative basis for dismissing Plaintiff's claim, Defendant relied on a copy of a check for $850.00 payable to "Jules F. Parisien," for which Defendant provided [*3]no foundation for its admissibility. Even assuming a proper foundation, the check referenced a claim number that was not legible. In addition, Defendant presented no evidence associating the claim number on the check with Plaintiff's claim. Furthermore, the check did not refer to the date Plaintiff provided medical services to Diallo as alleged in the complaint. Finally, the check did not establish timely payment of the claim as required by the No Fault regulations (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]).

CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Here, Defendant failed to establish its payment or timely payment to Plaintiff as argued. Plaintiff also failed to establish that Plaintiff's action here was barred by res judicata. Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant's Motion without considering Plaintiff's Opposition (see Pullman v Silverman, 28 NY3d 1060, 1062 [2016]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

IV. Order

Accordingly, it is

ORDERED that Defendant's motion for summary judgment dismissing Plaintiff's complaint is denied.

This constitutes the Decision and Order of the court.

Dated: September 19, 2022
Queens County Civil Court

____________________________
Honorable Wendy Changyong Li, J.C.C.