Pavlova v. Metlife Auto & Home

Pavlova v Metlife Auto & Home (2020 NY Slip Op 51007(U)) [*1] Pavlova v Metlife Auto & Home 2020 NY Slip Op 51007(U) [68 Misc 3d 133(A)] Decided on August 28, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on August 28, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ 2019-173 K C Ksenia Pavlova, D.O., as Assignee of Jamal Ojado James, Respondent, against Metlife Auto & Home, Appellant. Bruno, Gerbino. Soriano & Aitken, LLP (Nathan Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed). Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 14, 2018. The order denied defendant's motion to dismiss the complaint and granted plaintiff's cross motion for summary judgment. ORDERED that the order is reversed, with $30 costs, defendant's motion to dismiss the complaint is granted and plaintiff's cross motion for summary judgment is denied. In July 2015, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, "Jamal Ojado James," who had allegedly sustained injuries in a motor vehicle accident which had occurred on September 15, 2014. Issue was joined in August 2015, with defendant raising the affirmative defense of res judicata. Subsequently, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (5), contending that plaintiff's cause of action was barred by virtue of an order entered on October 13, 2017 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that plaintiff herein and its assignor, "Jamal James," had no right to be reimbursed for services rendered to the assignor and that defendant herein had no obligation to provide coverage for no-fault claims with respect to the accident in question. Plaintiff opposed defendant's motion and cross-moved for summary judgment, arguing, among other things, that the order in the declaratory judgment action has no res judicata effect because the declaratory judgment was entered on default and that, in any event, the causes of action were "not identical." Defendant appeals from an order of the Civil Court which denied defendant's motion on the ground that the declaratory judgment had a "different name for the assignor," and granted plaintiff's cross motion. Initially, we note that defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) was made after issue had been joined. Generally, such a motion must be made "before service of the responsive pleading is required" (CPLR 3211 [e]), although "[w]hether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a [*2]motion for summary judgment" (CPLR 3211 [c]). Here, no such notice appears in the record; however, plaintiff failed to argue in the Civil Court or on appeal that the motion was improper as untimely. In support of its motion, defendant asserted that both plaintiff herein and its assignor were named and served in the declaratory judgment action and that the order therein declared their rights. The date of the accident, the policy number and the claim number assigned by defendant as set forth in the Civil Court complaint and plaintiff's bill attached to the complaint, matched the information in the declaratory judgment action. Additionally, the home address in Maryland that is given for "James, Jamal O." in the police report submitted in support of defendant's motion herein matches the address contained in the insurance policy in question, also submitted in support of defendant's motion. Thus, it is indisputable that plaintiff's assignor, Jamal Ojado James, is the same individual as Jamal James named as a defendant in the declaratory judgment action. In light of the Supreme Court's order in the declaratory judgment action, the Civil Court should have granted defendant's motion to dismiss (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d at 2). Moreover, the Supreme Court's order is a conclusive final determination, notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C., 38 Misc 3d 1; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Accordingly, the order is reversed, defendant's motion to dismiss the complaint is granted and plaintiff's cross motion for summary judgment is denied. ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: August 28, 2020