Opinion
No. 2013–2410 Q C.
12-15-2015
PROMED ORTHOCARE SUPPLY, INC. as Assignee of Edriss Noel, Respondent, v. AIG ADVANTAGE INS. CO., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 30, 2013. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, without costs. In this action to recover assigned first-party no-fault benefits, after plaintiff moved for summary judgment, defendant commenced a declaratory judgment action in the Supreme Court, Nassau County, against, among others, various medical providers, including plaintiff herein, seeking a declaration that defendant had no duty to provide coverage with respect to the accident from which the claims at issue in this action arose. By order dated March 15, 2010, the Supreme Court granted, on default, defendant's motion for the entry of a declaratory judgment. Defendant subsequently cross-moved for summary judgment dismissing the complaint in the case at bar on the ground that this action is barred by the doctrines of res judicata and collateral estoppel by virtue of the March 2010 Supreme Court order in the declaratory judgment action. By order entered July 30, 2013, the Civil Court, among other things, denied defendant's cross motion.
Upon a review of the record, we find that since the March 2010 Supreme Court order in the declaratory judgment action merely granted the entry of a declaratory judgment, but failed to make a statement declaring the rights of the parties involved (see Hirsch v. Lindor Realty Corp., 63 N.Y.2d 878, 881 [1984] ; Suburban Bindery Equip. Corp. v. Boston Old Colony Ins. Co., 150 A.D.2d 767 [1989] ; Metro Health Prods., Inc. v. Nationwide Ins., 48 Misc.3d 85 [App Term, 2d, 11th & 13th Jud Dists 2015] ), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the instant no-fault action (see Metro Health Prods., Inc. v. Nationwide Ins, 48 Misc.3d 85 ; cf. Vital Meridian Acupuncture, P.C. v. Republic W. Ins. Co., 46 Misc.3d 147[A], 2015 N.Y. Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015] ; EBM Med. Health Care, P.C. v. Republic W. Ins., 38 Misc.3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012] ).
Accordingly, the order entered July 30, 2013, insofar as appealed from, is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.