[*1]
Ultimate Health Prods., Inc. v American Tr. Ins. Co.
2015 NY Slip Op 50906(U) [48 Misc 3d 126(A)]
Decided on June 11, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 11, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : ALIOTTA, J.P., SOLOMON and ELLIOT, JJ.
2013-2378 Q C

Ultimate Health Products, Inc. as Assignee of HIYOMAILYS LACHAPELLE, Appellant,

against

American Transit Ins. Co., Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 26, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for supplies it provided to its assignor for injuries he had sustained in a motor


vehicle accident on November 10, 2010. After this action had been commenced in the Civil Court, defendant instituted a declaratory judgment action in the Supreme Court,


Bronx County, against plaintiff's assignor and various medical providers, including plaintiff herein. By order dated October 26, 2012, the Supreme Court granted the motion therein for a default judgment, which order stated, among other things, that "[t]his action was brought for a declaration that defendant Hiyomailys Lachapelle, (Lachapelle), and the medical provider[s] . . . of Lachapelle are not entitled to no-fault coverage with a motor vehicle accident that occurred on November 10, 2010 . . . [American Transit's] motion for default judgment against [Lachapelle and Ultimate Health Products, Inc.] . . . is granted."

In January 2012, plaintiff moved for summary judgment in the instant action, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the October 26, 2012 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered September 26, 2013, the Civil Court denied plaintiff's motion and granted defendant's cross motion.

Contrary to plaintiff's contention, the Civil Court correctly determined that the instant action is barred under the doctrine of res judicata by virtue of the October 26, 2012 Supreme Court order (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court's [*2]order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2000]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Plaintiff's remaining contentions lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.


Decision Date: June 11, 2015