Opinion
No. 2013–2529 K C.
07-07-2015
OMPHIL CARE, INC. as Assignee of Keeshan Harley, Respondent, v. HERTZ CO., Appellant.
Opinion
ORDERED that the judgment is reversed, with $30 costs, the order entered August 2, 2013 is vacated, plaintiff's motion for summary judgment is denied, and the branch of defendant's cross motion seeking summary judgment dismissing the complaint is granted.
Plaintiff Omphil Care, Inc. (Omphil) commenced this action on December 9, 2011 to recover from defendant Hertz Co. (Hertz) assigned first-party no-fault benefits for supplies provided to plaintiff's assignor as a result of injuries he had allegedly sustained in a motor vehicle accident on May 18, 2011. After issue was joined, Omphil, on December 27, 2012, moved for summary judgment. On May 2, 2013, Hertz cross-moved for a stay of the action, pursuant to CPLR 2201, or, in the alternative, for summary judgment dismissing the complaint.
In support of its cross motion, Hertz noted that, while the Civil Court action had been pending, Hertz had commenced a declaratory judgment action in Supreme Court, New York County, against Omphil and its assignor, among others, seeking, among other things, a declaration that it was not obligated to pay any claims for no-fault benefits arising out of the May 18, 2011 accident. After Omphil, among others, failed to appear or answer in the Supreme Court action, Hertz moved for a default judgment, pursuant to CPLR 3215. By order and judgment dated April 30, 2013, the Supreme Court (Ellen M. Coin, J.) granted Hertz's motion, stating, in pertinent part, that Hertz had no obligation to pay no-fault benefits to Omphil for claims arising out of the May 18, 2011 accident. At the time that Hertz filed its cross motion in the Civil Court, the Supreme Court order and judgment had not yet been served with notice of entry.
Defendant took an appeal from an order of the Civil Court granting plaintiff's motion and denying defendant's cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c] ).
The doctrines of res judicata and collateral estoppel are designed to put an end to a matter once it is duly decided (see Siegel, N.Y. Prac § 442, at 772 [5th ed] ). Res judicata, or claim preclusion, is invoked when a party, or those in privity with the party, seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or a series of transactions which were raised or could have been raised in a prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005] ; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 306–307 [1929] ). It is well settled that default judgments can have res judicata effect (see Lazides v. P & G Enters., 58 AD3d 607 [2009] ; Ava Acupuncture, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 34 Misc.3d 149[A], 2012 N.Y. Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012] ).
In light of the Supreme Court's declaratory judgment, the branch of defendant's motion seeking summary judgment dismissing the complaint should have been granted under the doctrine of res judicata (see EBM Med. Health Care, P.C. v. Republic W. Ins., 38 Misc.3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012] ; Ava Acupuncture, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 34 Misc.3d 149[A], 2012 N.Y. Slip Op 50233[U] ; SZ Med., P.C. v. Erie Ins. Co., 24 Misc.3d 126[A], 2009 N.Y. Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court's declaratory judgment (see Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 306–307 ; Flushing Traditional Acupuncture, P.C. v. Kemper Ins. Co., 42 Misc.3d 133[A], 2014 N.Y. Slip Op 50052[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ; SZ Med., P.C. v. Erie Ins. Co., 24 Misc.3d 126[A], 2009 N.Y. Slip Op 51221[U] ). The fact that Hertz, at the time it made its cross motion, had not yet served Omphil with notice of entry of the Supreme Court judgment is not fatal, in view of the binding and conclusive effect of the judgment (see Great Health Care Chiropractic, P.C. v. American Tr. Ins. Co., 44 Misc.3d 143[A], 2014 N.Y. Slip Op 51324[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ; see also 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] ).
Accordingly, the judgment is reversed, the order entered August 2, 2013 is vacated, plaintiff's motion for summary judgment is denied, and the branch of defendant's cross motion seeking summary judgment dismissing the complaint is granted.
ALIOTTA, J.P., SOLOMON and ELLIOT, JJ., concur.