Opinion
2020-178 K C
04-01-2022
Ahava Medical Diagnostic, P.C., as Assignee of Amiri, Behzad, Respondent, v. Hertz Co., Appellant.
Rubin, Fiorella, Friedman & Mercante, LLP (Daniel Passer of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Unpublished Opinion
Rubin, Fiorella, Friedman & Mercante, LLP (Daniel Passer of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 8, 2019. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion seeking to vacate a judgment of that court entered November 2, 2018 upon defendant's failure to appear or answer the complaint and, upon such vacatur, to dismiss the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant's motion seeking to vacate the default judgment and, upon such vacatur, to dismiss the complaint are granted.
In this action by a provider to recover first-party no-fault benefits for the services it rendered to its assignor for injuries the assignor sustained in a motor vehicle accident on April 11, 2016 (to which claim defendant assigned number 0220168887), defendant failed to appear or answer the complaint. A default judgment was subsequently entered in plaintiff's favor on November 2, 2018. Thereafter, defendant moved to, among other things, vacate the default judgment and, upon such vacatur, to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata based on a declaratory judgment of the Supreme Court, New York County, entered on August 8, 2018. The Supreme Court judgment declared that certain defendants therein, including Ahava Medical Diagnostic, P.C., are not entitled to no-fault coverage for the accident at issue in the case at bar. The Supreme Court order was entered upon the default of certain defendants therein, which judgment was served on those defendants, with notice of entry, on November 14, 2018. By order entered November 8, 2019, the Civil Court denied defendant's motion, finding that although defendant had established a reasonable excuse for its default in the instant action, it did not demonstrate a potentially meritorious defense because the Supreme Court's declaratory judgment was served, with notice of entry, after the default judgment had been entered herein and, therefore, the doctrine of res judicata did not apply.
The fact that the default judgment in the case at bar was entered prior to the service, with notice of entry, of the Supreme Court's declaratory judgment is not fatal to the latter's binding and conclusive effect (see Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc.3d 137 [A], 2016 NY Slip Op 51072[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Omphil Care, Inc. v Hertz Co., 48 Misc.3d 131 [A], 2015 NY Slip Op 51052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 44 Misc.3d 143 [A], 2014 NY Slip Op 51324[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc.3d 48 [App Term, 2d, 11th & 13th Jud Dists 2014]). We thus take judicial notice of the August 8, 2018 declaratory judgment which preceded the entry of judgment herein (see Longevity Med. Supply, Inc. v Global Liberty Ins. Co., 67 Misc.3d 135 [A], 2020 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Maiga Prods. Corp. v Hertz Co., 61 Misc.3d 132 [A], 2018 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; K.O. Med., P.C. v Mercury Cas. Co., 57 Misc.3d 155 [A], 2017 NY Slip Op 51614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
The Supreme Court's August 8, 2018 declaratory judgment declares that the plaintiff "has no duty to pay any No-Fault benefits in the form of sums, monies, damages, awards or benefits to defendants AHAVA MEDICAL DIAGNOSTIC P.C.... arising out of any current or future proceeding... seeking to recover No-Fault benefits with respect to the April 11, 2016 collision referenced in the complaint (also known as plaintiff claim number 02-2016-8887)." The foregoing declaration demonstrates that defendant has a meritorious defense to the action. Moreover, contrary to plaintiff's argument, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default based on law office failure (see CPLR 2005). Consequently, the branch of defendant's motion seeking to vacate the default judgment should have been granted. In view of the foregoing, upon such vacatur, the branch of defendant's motion seeking to dismiss the complaint should have been granted based on the doctrine of res judicata (see Longevity Med. Supply, Inc. v Global Liberty Ins. Co., 2020 NY Slip Op 50527[U]; Maiga Prods. Corp. v Hertz Co., 2018 NY Slip Op 51448[U]; K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51614[U]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc.3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Omphil Care, Inc. v Hertz Co., 2015 NY Slip Op 51052[U]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc.3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant's motion seeking to vacate the default judgment and, upon such vacatur, to dismiss the complaint are granted.
ALIOTTA, P.J., WESTON and GOLIA, JJ., concur.