Blog

Notice of Entry is not what some think it meansJuly 6, 2014

All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 2014 NY Slip Op 24161 (App. Term 2d Dept. 2014)

(1) In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Devin P. Cohen, J.), on November 12, 2010, granted defendant’s motion for summary judgment dismissing the complaint. Nevertheless, the action subsequently proceeded to trial before Judge Johnny Lee Baynes. At the nonjury trial, defendant’s counsel advised the court of the existence of the summary judgment order and that the order had been issued in open court following oral argument. However, the court ruled that the order was not binding because it had not been served with notice of entry on plaintiff’s counsel. Following the trial, judgment was entered in favor of plaintiff in the principal sum of $1,061.63.

(2) (And for this, Justice Baynes was elevated to Supreme Court.  Yet, how many Supreme Court orders granting declarations of non-coverage [always out of Kings] have been nullified  due to the Civil Kings rule that the failure to serve an order with notice of entry means it never happened.  I shake my head when I see some of these short form orders, but then I say to myself, it is Civil Kings, nothing should surprise me)

(3) “A grant of summary judgment is the procedural equivalent of a trial (see Falk v Goodman, 7 NY2d 87, 91 [1959]; News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146 [2005]), and an order granting such relief is as final and as conclusively determinative of all issues in an action as is a judgment after trial (see Engel v Aponte, 51 AD2d 989 [1976]; Riley v Southern Transp. Co., 278 App Div 605 [1951]). Thus, since the grant of summary judgment operates as a final determination on the merits of the claims in question, once a court has granted such a motion based on the facts adduced before it, the doctrine of res judicata applies (see Buckley & Co. v City of New York, 121 AD2d 933 [1986]; Cebron v McBride Dev. Corp., 93 AD2d 876 [1983]; Eidelberg v Zellermayer, 5 AD2d 658 [1958], affd 6 NY2d 815 [1959]), as does the doctrine of law of the case. Therefore, an order granting summary judgment is binding on all other judges of coordinate jurisdiction (see Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933 [2011]), and the conclusive effect of such an order may not be fatally [*2]undermined, as it was here, by allowing the party whose action was dismissed a second chance to litigate the matter

(4) “We note in passing that, under the circumstances presented, even if the trial court thought that the order granting summary judgment was not enforceable at the time of trial, the better practice would have been to exercise its discretion and grant defendant’s counsel’s request for an adjournment so as to afford defendant an opportunity to take any steps necessary to render the order enforceable instead of wasting scarce judicial resources conducting a trial after summary judgment had already been granted to defendant.”

 

Leave a Reply