Parisien v. Kemper Ins. Co.

Parisien v Kemper Ins. Co. (2022 NY Slip Op 51240(U)) [*1] Parisien v Kemper Ins. Co. 2022 NY Slip Op 51240(U) [77 Misc 3d 132(A)] Decided on November 18, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 18, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2021-716 K C Jules Francois Parisien, M.D., as Assignee of David, Joshua, Appellant, against Kemper Insurance Company and Unitrin Direct Insurance Company, Respondents. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Lindsay A. Padover of counsel), for respondents. Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated October 13, 2021. The order granted a motion by defendant Unitrin Direct Insurance Company for summary judgment dismissing the complaint in its entirety and denied plaintiff's cross motion for summary judgment. ORDERED that, on the court's own motion, the caption is amended to reflect the addition of Unitrin Direct Insurance Company as a party defendant, and the caption has been amended accordingly, and it is further, ORDERED that the order is affirmed, with $25 costs. Jules Francois Parisien, M.D., commenced this action against Kemper Insurance Company (Kemper) to recover assigned first-party no-fault benefits for services provided to Parisien's assignor, Joshua David, who had allegedly been injured in an accident on October 25, 2016. Unitrin Direct Insurance Company (Unitrin) appeared in the action by serving and filing an answer in which it characterized itself as having been incorrectly sued as Kemper, thereby agreeing that the allegations in the complaint were properly asserted against it. After the commencement of this action, Unitrin brought a declaratory judgment action in Supreme Court, New York County, against Parisien and David, among other parties, pertaining to the October 25, 2016 accident, and moved therein for summary judgment against Parisien, among other providers. In an order entered May 11, 2020, upon granting Unitrin's motion for summary judgment against Parisien and other providers with respect to David, the Supreme Court declared that, because of David's failure to comply with a condition precedent, Unitrin was not obligated to pay claims for reimbursement submitted by Parisien for services provided to David in connection with the October 25, 2016 accident. Unitrin thereafter moved in the Civil Court to dismiss the complaint "[p]ursuant to CPLR 3211 (a) (5) and 3212 . . . on the ground that plaintiff's claim is barred by [the] doctrine of res judicata" based upon the Supreme Court order. Unitrin's attorney also alleged in an affirmation in support of the motion that "plaintiff sued a non-existent entity, 'Kemper Casualty Insurance Company,' when the proper insurer is [Unitrin]," relying on an attached police report, and that "[o]n that basis alone" the complaint should be dismissed. Plaintiff cross-moved for summary judgment and opposed Unitrin's motion. By order dated October 13, 2021, the Civil Court granted Unitrin's motion to dismiss the complaint, finding that Unitrin was "the proper defendant in this action," thereby, in effect, dismissing the complaint insofar as asserted against Kemper, and finding that the action, insofar as asserted against Unitrin based upon its answering the complaint, was barred by res judicata. The court further denied plaintiff's cross motion. Since Unitrin voluntarily appeared in the action and the Civil Court accepted Unitrin Direct Insurance Company as "the proper defendant in this action," but the caption was not amended accordingly, on the court's own motion, we amend the caption to reflect the addition of Unitrin Direct Insurance Company as a party defendant. On appeal, the only issue raised by plaintiff with respect to so much of the Civil Court's order as granted Unitrin's motion is whether the May 11, 2020 Supreme Court order should have res judicata effect on this action, thereby warranting the dismissal of the complaint. Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in determining that Unitrin was the proper defendant, as Unitrin proffered sufficient evidence to support its contention that it is "the proper insurer" (cf. Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). "Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party" (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Because Unitrin is the proper defendant in this action, the Civil Court correctly granted its motion, as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the [*2]declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; 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. v Republic W. Ins., 38 Misc 3d 1, 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). 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: November 18, 2022