Blackman v. 21st Century Ins. Co.

Blackman v 21st Century Ins. Co. (2021 NY Slip Op 50771(U)) [*1] Blackman v 21st Century Ins. Co. 2021 NY Slip Op 50771(U) [72 Misc 3d 138(A)] Decided on July 30, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2020-151 K C Noel E. Blackman, M.D., as Assignee of Barnes, Omari, Appellant, against 21st Century Insurance Company, Respondent. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), dated September 18, 2019. The order granted defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, defendant 21st Century Insurance Company (21st Century) moved for summary judgment dismissing the complaint. In support of its motion, 21st Century submitted an order that had been entered on November 28, 2017 in a Supreme Court declaratory judgment action, which granted a motion brought by 21st Century, among other insurers, seeking a default judgment against the present plaintiff, among other providers. The annexed order found specifically that 21st Century and the other insurers were entitled to a default judgment on liability against the providers, but did not declare the rights of the parties. Plaintiff opposed defendant's motion in the Civil Court. By order entered September 18, 2019, the Civil Court granted defendant's motion for summary judgment dismissing the complaint based upon a declaratory judgment that was entered in the Supreme Court on February 22, 2018 pursuant to the November 28, 2017 order. In response to the instant appeal by plaintiff, 21st Century submits the declaratory judgment, which declared, among other things, that 21st Century has no duty to pay any no-fault benefits to Noel E. Blackman in any current or future proceeding, because the provider is ineligible to collect no-fault benefits. A court "may in general take judicial notice of matters of public record" (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 [*2]AD3d 13 [2009]). In light of the Supreme Court's declaratory judgment, of which we take judicial notice, we find no basis to disturb the Civil Court's order granting defendant's motion for summary judgment dismissing the complaint under the doctrine of res judicata (see Wave Med. Servs., P.C. v Farmers New Century Ins. Co., 67 Misc 3d 137[A], 2020 NY Slip Op 50555[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg 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]). In view of the foregoing, we reach no other issue. Accordingly, the order is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 30, 2021