Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50233(U))

Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50233(U) [34 Misc 3d 149(A)]

Decided on February 9, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Ava Acupuncture, P.C. as Assignee of MARIE POKIE, FAUSTO ALVAREZ, MICHAEL MONOPREMIER, OMESH PERSAUD and JOSE TURCIOS, Appellant,

against

NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 28, 2009. The order denied plaintiff's motion to, among other things, compel certain discovery and granted defendant's cross motion for summary judgment dismissing the complaint.

After plaintiff had commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignors, defendant commenced a declaratory judgment action in Supreme Court, Queens County, against various medical providers and their assignors, including plaintiff and its assignors herein. By order dated October 26, 2007, the Supreme Court granted defendant's motion for entry of a declaratory judgment, on default, declaring that defendant had "no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage" to the parties named as defendants in the declaratory judgment action. In December 2007, plaintiff herein moved to compel certain discovery from defendant or, in the alternative, to strike defendant's answer. Defendant cross-moved for summary judgment [*2]dismissing the complaint, contending that this action was barred by virtue of the October 26, 2007 order of the Supreme Court. The Civil Court denied plaintiff's motion and granted defendant's cross motion.

Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; 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]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff's contention, the Supreme Court's 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 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Furthermore, based on the Supreme Court's order, plaintiff's motion to compel discovery or, in the alternative, strike defendant's answer was rendered moot, and, thus, properly denied. Plaintiff's remaining contentions lack merit.