Opinion
No. 570280/22
10-24-2022
New Capital 1 Inc. a/a/o Carol J. Smart, Plaintiff-Respondent, v. Kemper Independence Insurance Company, Defendant-Appellant.
Unpublished Opinion
MOTION DECISION
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Aija Tingling, J.), entered April 6, 2022, which denied its motion for summary judgment dismissing the complaint.
PRESENT: Hagler, J.P., Tisch, Michael, JJ.
PER CURIAM.
Order (Aija Tingling, J.), entered April 6, 2022, reversed, without costs, defendant's motion for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
In a separate action commenced by the defendant-insurer against various medical providers, including the plaintiff herein, the Supreme Court, New York County (Lynn R. Kotler, J.), declared that the defendant has no duty to pay the plaintiff's no-fault claims arising from injuries allegedly sustained by its assignor, Carol Smart, in a February 15, 2019 motor vehicle accident. Based upon this Supreme Court judgment, the underlying action commenced by the plaintiff to recover first-party no-fault benefits for medical services rendered to Carol Smart for injuries sustained in the subject accident is barred under the doctrine of res judicata (see Pomona Med. Diagnostics, P.C. v. Metropolitan Cas. Ins. Co., 29 Misc.3d 138 [A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]; see also Abraham v Hermitage Ins. Co., 47 A.D.3d 855 [2008]). A different judgment in the underlying action would destroy or impair rights established by the judgment rendered by Supreme Court in the related action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; see also BDO Seidman LLP v Strategic Resources Corp., 70 A.D.3d 556, 560 [2010]). The Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on default, as res judicata applies to a judgment taken on default that has not been vacated (see McGookin v Berishai, 187 A.D.3d 472, 474 [2020]; Trisingh Enters. v Kessler, 249 A.D.2d 45, 46 [1998]).
Accordingly, the court should have granted defendant's motion for summary judgment dismissing the instant action.
All concur