Healthwise Med. Assoc., P.C. v. Nationwide Ins.

Healthwise Med. Assoc., P.C. v Nationwide Ins. (2022 NY Slip Op 51251(U)) [*1] Healthwise Med. Assoc., P.C. v Nationwide Ins. 2022 NY Slip Op 51251(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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2021-717 K C Healthwise Medical Associates, P.C., as Assignee of Rosa, Reynaldo, Appellant, against Nationwide Ins. and Harleysville Worcester Insurance Company, Respondents. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondents. Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 7, 2021. The order granted defendant's motion for, in effect, summary judgment dismissing the complaint, denied plaintiff's cross motion for summary judgment, and denied, as moot, plaintiff's separate motion to dismiss the affirmative defenses. ORDERED that, on the court's own motion, the caption is amended to reflect the addition of Harleysville Worcester 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. Healthwise Medical Associates, P.C. (Healthwise) commenced this action against defendant Nationwide Ins. (Nationwide) to recover assigned first-party no-fault benefits for medical services provided to its assignor, Reynaldo Rosa, as a result of injuries Rosa allegedly sustained in an automobile accident on July 6, 2016, under claim number 655439-GD. Harleysville Worcester Insurance Company (Harleysville) appeared in the action by serving and filing an answer in which it characterized itself as having been incorrectly sued as Nationwide, thereby agreeing that the allegations in the complaint were properly asserted against it. Before Healthwise commenced this action, Harleysville had commenced a declaratory judgment action in Supreme Court, Nassau County, against Healthwise, among other providers, and its assignor, Rosa, alleging that Harleysville had no duty to pay no-fault benefits to the named defendants therein, as Rosa was not an eligible injured person pursuant to the no-fault regulations, and, thus, not covered under the insurance policy. In an order dated June 20, 2018 and entered August 29, 2018, the Supreme Court, upon defaults in appearing in the action by, insofar as is relevant here, both Rosa and Healthwise, granted an unopposed motion by Harleysville for summary judgment, declared "that Harleysville is not required to provide insurance coverage to [Rosa and Healthwise] for any claims arising out of the date of loss of July 6, 2016, Nationwide claim number 655439-GD." Harleysville 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. Healthwise cross-moved for summary judgment and to dismiss Harleysville's affirmative defenses. Healthwise also separately moved to dismiss Harleysville's affirmative defenses. By order dated October 7, 2021, the Civil Court granted Harleysville's motion, denied Healthwise's cross motion for summary judgment, and also denied, as moot, Healthwise's separate motion to dismiss the affirmative defenses. The court stated, "Defendant has presented the Declaratory Judgment Order of the Supreme Court, County of Nassau, dated June 20, 2018, under Index Number 611998/2017, which declared that HARLEYSVILLE, a subsidiary company of NATIONWIDE and the underwriter of the subject policy of insurance, has no obligation to provide No-Fault reimbursement to Plaintiff with regard to the claims under NATIONWIDE claim number 655439-GD and the date of accident of July 6, 2016, at issue." Since Harleysville voluntarily appeared in this action and the Civil Court treated Harleysville Worcester Insurance Company as a proper defendant but the caption was not amended accordingly, on the court's own motion, we amend the caption to reflect the addition of Harleysville Worcester Insurance Company as a party defendant. On appeal, the only issue raised by Healthwise with respect to so much of the Civil Court's order as granted Harleyville's motion is whether the Supreme Court order entered August 29, 2018 should have res judicata effect on this action, thereby warranting the dismissal of the complaint herein. "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]). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in determining that Harleysville's declaratory judgment order has res judicata effect on this action, as Harleysville 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],[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2020]). Under the circumstances presented, the Civil Court correctly granted Harleysville's motion and, in effect, dismissed the complaint in its entirety, as any judgment in favor of Healthwise in this action would destroy or impair rights or interests established by the order in the 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]). Accordingly, the order is affirmed. ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 2, 2022