Healing Art Acupuncture, P.C. v. 21st Century Ins. Co.

Healing Art Acupuncture, P.C., as Assignee of Mabel Castillo, Appellant, against 21st Century Insurance Company, Respondent. The Rybak Firm, PLLC (Damin J. Toell and Louis Desorbo of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 16, 2015. The order denied plaintiff's motion for summary judgment. ORDERED that the order is affirmed, without costs, and, upon a search of the record, defendant is awarded reverse summary judgment dismissing the complaint. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant did not oppose the motion with an affidavit or an attorney's affirmation, but presented the Civil Court with orders of the Supreme Court, Nassau County, in a declaratory judgment action which had been commenced by defendant herein. The Supreme Court orders, respectively, granted defendant's motion for summary judgment against plaintiff herein and granted defendant's separate motion for a default judgment against plaintiff's assignor. The Supreme Court order granting defendant's motion for summary judgment held that defendant had established its founded belief that there was no coverage for no-fault benefits arising out of the accident at issue because the collision had been a staged incident. Thereafter, based upon the orders in the Supreme Court declaratory judgment action, the Civil Court, by order entered October 16, 2015, denied plaintiff's motion for summary judgment, finding that defendant has no duty to provide coverage for the accident at issue. Plaintiff appeals from the October 16, 2015 order of the Civil Court. A judgment was subsequently entered in the Supreme Court pursuant to the aforementioned order of that court granting defendant's motion for summary judgment. The judgment declared, among other things, that the insurance policy that had been issued to plaintiff herein's assignor was null and void, and that defendant herein has no duty to provide coverage for any claim for no-fault benefits made in connection with the loss in question. While defendant did not proffer in the Civil Court an affirmation of its counsel or an affidavit in opposition to plaintiff's motion, and defendant did not annex the Supreme Court orders as exhibits to any opposition papers, a court "may in general take judicial notice of matters [*2]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 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]). Consequently, in light of the Supreme Court's orders and declaratory judgment, of which we take judicial notice, we find that the Civil Court properly denied plaintiff's motion for summary judgment under the doctrines of res judicata and collateral estoppel (see 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]), and, upon a search of the record, we find that defendant established its entitlement to judgment as a matter of law. In view of the foregoing, we reach no other issue. Accordingly, the Civil Court's order is affirmed and, upon a search of the record, defendant is awarded reverse summary judgment dismissing the complaint. ELLIOT, J.P., PESCE and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 13, 2018