Medical Supply of NY Corp. v. Nationwide Ins. Co.

Medical Supply of NY Corp. v Nationwide Ins. Co. (2022 NY Slip Op 51253(U)) [*1] Medical Supply of NY Corp. v Nationwide Ins. Co. 2022 NY Slip Op 51253(U) [77 Misc 3d 133(A)] Decided on December 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2022-97 K C Medical Supply of NY Corp., as Assignee of Joseph Chatman, Respondent, against Nationwide Ins. Co., Appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 18, 2022. The order denied defendant's motion for, in effect, summary judgment dismissing the complaint. ORDERED that the order is reversed, with $30 costs, and defendant's motion for, in effect, summary judgment dismissing the complaint is granted. Plaintiff (Medical Supply) commenced this action to recover assigned first-party no-fault benefits, under claim number 757285-GH, for medical services that it had provided to its assignor as a result of injuries which, the complaint stated, had been sustained in an automobile accident on August 24, 2018. After Medical Supply commenced this action, defendant (Nationwide) answered and, separately, commenced a declaratory judgment action in the Supreme Court, Onondaga County, against Medical Supply, alleging that Nationwide had no duty to pay no-fault benefits to Medical Supply under claim number 757285-GH with respect to an accident which had occurred on August 22, 2018. In an order entered on March 9, 2020, the Supreme Court, upon Medical Supply's default in appearance in the action, granted an unopposed motion by Nationwide for summary judgment, declaring that Nationwide was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by [*2]Medical Supply under claim number 757285-GH, with date of loss August 22, 2018. Nationwide, thereafter, moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. The Civil Court, in an order entered on January 18, 2022, denied Nationwide's motion, finding that an issue of fact exists as to when the accident occurred. Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]). Nationwide established, prima facie, that Medical Supply sought in this action to recover for medical supplies furnished to its assignor as a result of injuries allegedly sustained by its assignor in the August 22, 2018 accident that was the subject of the Supreme Court declaratory judgment action. All of the documentary evidence created by persons with personal knowledge of the accident alleged that the accident occurred on August 22, 2018. Medical Supply's only evidence that the accident occurred on August 24, 2018 was the allegation in its own complaint, which was not based upon personal knowledge and which contradicts the documents created and executed by the assignor himself, the assignor's counsel's letter of representation, and the police accident report. Therefore, Medical Supply's opposition was wholly insufficient to rebut Nationwide's prima facie showing. Consequently, the instant action is barred by res judicata. Accordingly, the order is reversed and defendant's motion for, in effect, summary judgment dismissing the complaint is granted. ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 2, 2022