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.
