Res judicata – privity
East Hampton Capital LLC v Fergusson, 2020 NY Slip Op 02718 (1st Dept. 2020)
“This action is barred by res judicata in view of the prior decision in an action involving defendant and a prior owner of the subject apartment (NLI/Lutz, LLC [NLI/Lutz]). “[U]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties,” or those in privity with them, on any “claims arising out of the same transaction or series of transactions . . . , even if based upon different theories or if seeking a different remedy”
Avoiding the 120-day rule to make a summary judgment motion
Active Chiropractic, P.C. v Allstate Ins., 2018 NY Slip Op 50201(U)(App. Term 2d Dept. 2018)
“Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue had been joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court, in effect, to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).”
Upon finding the motion properly brought and timely, judgment on the unpleaded affirmative defense was granted.
Judicial notice of Supreme Court order in the reply brief
K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51614(U)(App. Term 2d Dept. 2017)
(1) “In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. Defendant appeals from an order of the Civil Court, entered July 11, 2014, which denied defendant’s motion, finding that defendant had failed to establish the assignor’s nonappearances at the EUOs, and granted plaintiff’s cross motion. On the appeal, defendant has annexed to its reply brief a December 4, 2014 short-form order of the Supreme Court, Bronx County, in a declaratory judgment action and asks this court to take judicial notice of that order, in which the Supreme Court granted on default a judgment declaring that plaintiff herein and its assignor, among others, are not entitled to no-fault coverage for the accident that is at issue in the case at bar.”
(2) Contrary to the determination of the Civil Court, plaintiff failed to establish its prima facie entitlement to summary judgment, as plaintiff’s cross-moving papers failed to establish either that defendant had not denied the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law ” (failure to satisfy the post 2010 formulation for summary judgment prima facie)
(3) “Ordinarily, a reversal of this portion of the Civil Court’s order, standing alone, would result in the matter being remitted to the Civil Court for all further proceedings. However, as a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Headley v New York City Tr. Auth., 100 AD3d 700 [2012]), this court, having afforded plaintiff an opportunity to address the propriety of the Supreme Court’s short-form order, and as the challenges that plaintiff has raised thereto lack merit, declines to remit the matter and, in the interest of judicial economy, takes judicial notice of the Supreme Court’s superseding order, entered October 17, 2016, pursuant to the short-form order, granting defendant’s motion for the entry of a default judgment and declaring that plaintiff herein and its assignor are not entitled to no-fault benefits arising out of the accident at issue (see Headley, 100 AD3d at 701; Brandes Meat Corp., 146 AD2d at 667). As the Supreme Court’s order bars any subsequent proceeding between the parties in the Civil Court under the doctrine of res judicata (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]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), it sufficiently appears that a party other than plaintiff is entitled to summary judgment (see CPLR 3212 [b]). Accordingly, upon reversing the portion of the Civil Court’s order which granted plaintiff’s cross motion for summary judgment, we grant defendant summary judgment dismissing the complaint pursuant to the doctrine of res judicata” (Upon reversal, the case should be dismissed based upon res judicata)
Judgment in declaratory judgment action does not need to rendered against Assignor to be effective
Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564(U)(App. Term 2d Dept. 2016)
The eventual order and/or judgment does not need to be entered against assignor directly.
(1) “However, insofar as is relevant to this appeal, the Civil Court denied the branches of defendant’s unopposed motion seeking summary judgment dismissing the fifth through eighth causes of action, which causes of action related to services that plaintiff had rendered to assignor Lawrence Jones, on the ground that the order in the declaratory judgment action had not been granted as against Lawrence Jones, individually. Defendant appeals from so much of the order as denied the branches of its motion seeking summary judgment dismissing the fifth through eighth causes of action.”
(2) “Plaintiff was named and served in the declaratory judgment and ultimately defaulted therein. As plaintiff’s right to recover as an assignee of Lawrence Jones was fully litigated in the Supreme Court action, notwithstanding defendant’s admitted failure to serve Lawrence Jones individually in that action, and notwithstanding that the declaratory judgment made no determination as against Lawrence Jones, individually, the order in the declaratory judgment action was a conclusive final determination barring plaintiff from recovering for any services it rendered to Lawrence Jones arising from the July 16, 2010 accident.”
Unpleaded affirmative defense is sufficient
Metro Health Prods., Inc. v Nationwide Ins., 2016 NY Slip Op 51122(U)(App. Term 2d Dept. 2016)
“Nationwide had no basis to assert the defenses of collateral estoppel and res judicata before January 28, 2013, when the declaratory judgment was entered in the Supreme Court (see Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While plaintiff contended in the Civil Court that Nationwide had failed to move to amend its answer, the answer may be deemed amended to include the affirmative defenses of collateral estoppel and res judicata (see Barrett v Kasco Constr. Co., 84 AD2d 555 [1981], affd 56 NY2d 830 [1982]), and a waiver of such defenses (see CPLR 3211 [e]) will not result where, as here, the defendant’s failure to assert the defenses in its answer did not take the plaintiff by surprise (see Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]; see e.g. Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see also Rogoff v San Juan Racing Assn., 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]). We note that, notwithstanding plaintiff’s conclusory assertion of prejudice, an examination of the record reveals none. “Indeed, an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party’ (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see also Lerwick v Kelsey, 24 AD3d 918, 919 [2005]; Allen v Matthews, 266 AD2d 782 [1999])” (Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U], *1).
Consequently, in light of the Supreme Court’s declaratory judgment, the Civil Court properly granted Nationwide’s motion for summary judgment under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this 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]; EBM Med. Health Care, P.C., 38 Misc 3d at 2)”
We have seem this before. And we will see it again.
Supplemental affirmation on a DJ case acceptable and res judicata mandates dismissal of complaint
Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 2014 NY Slip Op 51324(U)(App. Term 2d Dept. 2014)
This was proudly mine and another example of why it pays to put up a good fight as well as to be proceduraly savvy.
“Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.
After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.
“(1) Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.”
(2) “Moreover, the Civil Court properly determined that the action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).”
(3) Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]).
(4) While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cf. Mosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.”
Every time Rybak appeals, he just digs that hole a little deeper and a little wider.
Back when DJ’s roamed the earth
Ultimate Health Prods., Inc. v American Tr. Ins. Co., 2014 NY Slip Op 51321(U)(App. Term 2d Dept. 2014)
Good job to my colleague and friend James Sullivan on this one.
“Ultimate Health Products, Inc. (Ultimate Health) commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Ultimate Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Ultimate Health as assignee of Carlos Martinez arising from the car accident in question. In December of 2011, plaintiff moved in the Civil Court for summary judgment. On May 15, 2012, the Supreme Court awarded American Transit a declaratory judgment on default. American Transit subsequently cross-moved in the Civil Court, pursuant to CPLR 3211 (a) (5), to dismiss plaintiff’s action, contending that this action is barred by virtue of the declaratory judgment. Plaintiff opposed defendant’s cross motion and now appeals from an order of the Civil Court, entered January 18, 2013, which implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint.
The Supreme Court determined that Ultimate Health’s assignor was not an eligible injured person entitled to no-fault benefits under the applicable policy, and that American Transit was not obligated to pay claims submitted by Ultimate Health as assignee of Carlos Martinez in any current or future proceedings arising under that policy from the car accident in question. In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. [*2]Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Plaintiff’s remaining arguments lack merit or were not preserved for appeal.”
This is from back when the good guys had the stage and providers had to earn their money.
Failure to settle declaratiory judgment not fatal to summary judgment motion in underlying Civil Court action
New Milennium Medical Imagine, P.C. v. American Transit Ins. Co., Index #: 4588/13 (Civ. Ct. Kings Co. 2013)
The Appellate Term held this month that a Notice of Entry is not a necessary to enforce a judgment under a theory of collateral estoppel. Of course, the next question to be asked is what happens when you obtain summary judgment in a declaratory judgment action, yet fail to enter a judgment on the underlying judgment?
Certain Plaintiff’s argue that the declaratory judgment is not enforceable. Not surprisingly, certain judge’s followed that logic. Enter Justice Ottley, who blew through the smoke and mirrors and held
“Plaintiff argues that due to defendant’s failure to demonstrate tha tit cimplied with the declaratory judgment order to settle judgment, defendant’s motion for a default judgment in the Supreme Court matter should be considered abandoned and result in the declaratory judgment order being deemed moot. Contrary to plaintiff’s argument, the court finds that defendant’s failure to settle judgment within 60 days as proscribed, did not amount to defendant’s abandonment of the declaratory action. Rather, defendant is entitled to settle judgment non pro tunc. See, Elliott Zaretsky v. ok Hui Kin, et. al., 17 AD3d 455 (2d Dept. 2005)
Notice of Entry is not what some think it means
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.”
Collateral estoppel again
Clark v Farmers New Century Ins. Co., 2014 NY Slip Op 03311 (3d Dept 2014)
The equitable doctrine of collateral estoppel precludes a party from relitigating an issue when it was clearly raised in a prior action or proceeding and decided against that party in a final judgment on the merits after a full and fair opportunity to be heard (see Matter of Feldman v Planning Bd. of the Town of Rochester, 99 AD3d 1161, 1162-1163 [2012]; Beneficial Homeowner Serv. Corp. v Mason, 95 AD3d 1428, 1429 [2012]; Gadani v DeBrino Caulking Assoc., Inc., 86 AD3d 689, 691 [2011]). Thus, “‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’” (Matter of Feldman v Planning Bd. of the Town of Rochester, 99 AD3d at 1163, quoting O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see O’Connor v Demarest, 74 AD3d 1522, 1523-1524 [2010]). In the Basco action, Supreme Court found that plaintiff failed to proffer objective medical evidence to demonstrate that she suffered any causally-related serious injury within the meaning of Insurance Law § 5102 (d), and this Court affirmed that order. As proof of a serious injury is a condition precedent to maintaining a SUM action for noneconomic loss (see Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 205 [2007]; see also 11 NYCRR 60-2.3 [f]), Supreme Court properly awarded defendant summary judgment based upon collateral estoppel with regard to plaintiff’s claim for noneconomic damages. As plaintiff argues, recovery of damages for economic loss in excess of basic economic loss does not require proof of a serious injury
I am curious how Huntington v. Travelers can remain good law when the court holds that once a claim is brought to a final conclusion, it is over. Here, Defendant proved lack of serious injury and Plaintiff failed to raise an issue of fact. If the waxing and waning of pain is sufficient to defeat a medical necessity motion, then this 4 judge panel in Albany cannot with a straight face preclude a subsequent challenge to a serious injury findings. What if Ms. Clark had a bad a few bad days after she got non-suited. Shouldn’t she have the right to do what Huntington Regional Chiro does and file another suit or an SUM arbitration for later pain a nd suffering? The Appellate Term, Second Department would have us think that. If I wax, I can beat collateral estoppel.