Opinion
No. 2021-603 K C
02-24-2023
Ahmed Medical Care, P.C., as Assignee of October, Celeste, Appellant, v. State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, MARINA CORA MUNDY, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated September 2, 2020. The order, insofar as appealed from, granted defendant's motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and denied the branches of plaintiff's cross motion seeking summary judgment on those four causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In October of 2017, plaintiff Ahmed Medical Care, P.C. (Ahmed) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover $892.14 in assigned first-party no-fault benefits for services Ahmed rendered to its assignor, Celeste October, for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. The services were rendered on six dates between June 23, 2015 and November 18, 2015.
State Farm moved for summary judgment dismissing causes of action (1), (2), (4) and (6) on the ground that they were barred by the doctrine of res judicata and/or collateral estoppel by virtue of the declaratory judgment issued by the Supreme Court, Nassau County, in a declaratory judgment action commenced by State Farm against Ahmed. In support of the motion, State Farm's counsel stated that, following Ahmed's default in appearing in the Supreme Court action, a judgment was entered on April 1, 2016 (Antonio I. Brandveen, J.) which declared that Ahmed had no right to receive payment from State Farm for any claims set forth in the chart attached to the Supreme Court complaint because the assignor had failed to appear for examinations under oath. State Farm attached to its Civil Court motion a copy of the chart containing the precluded claims. State Farm's counsel further stated that Ahmed's motion to vacate its default in appearing in the Supreme Court action was denied in an order entered September 2, 2016. Ahmed cross-moved in the Civil Court for summary judgment on all six causes of action. Ahmed's counsel argued, as is relevant here, that the declaratory judgment action has no preclusive effect on this action since it was granted on default.
In an order dated September 2, 2020, the Civil Court granted State Farm's motion for summary judgment dismissing causes of action (1), (2), (4) and (6), and granted Ahmed's cross motion for summary judgment only with respect to causes of action (3) and (5). Ahmed appeals.
For the reasons stated in Ahmed Med. Care, P.C., as assignee of October, Sigmund v State Farm Mut. Auto. Ins. Co. (__ Misc.3d __, 2023 NY Slip Op - [appeal No. 2021-659 K C], decided herewith), the order, insofar as appealed from, is affirmed.
TOUSSAINT, P.J., BUGGS and MUNDY, JJ., concur.