I. Papers The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint: Papers Numbered Defendant’s Notice of Motion and Affirmation dated February 14, 2020 (“Motion”) and file stamped by the court on March 3, 2020. 1 II. Background In a summons and complaint filed August 23, 2018, Plaintiff sued Defendant insurance company to recover $1,837.68 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Javier for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). In a summons and complaint dated and filed on November 5, 2018, Defendant commenced an action in Supreme Court, New York County (“Supreme Court Action”) against Javier, Plaintiff, and other nonparty medical service providers, seeking a judgment declaring that Defendant owed no duty to pay No Fault claims arising from Javier’s automobile accident because Javier failed to appear for scheduled examinations under oath (“EUO”) (see Motion, Kang Aff., Ex. C). On September 16, 2019, Defendant moved in the Supreme Court Action for a default judgment against all defendants, including Javier and Plaintiff (see Motion, Kang Aff., Ex. F). In an order dated December 17, 2019 and entered December 19, 2019, Supreme Court granted Defendant’s motion for a default judgment and declared that Defendant was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Javier (Country-Wide Ins. Co. v. Javier, Sup. Ct. NY County, December 17, 2019, K., J., Index No. 655488/18; Motion, Kang Aff., Ex. E). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion. III. Discussion “Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v. Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v. Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v. American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v. Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “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” (Simmons v. Trans Express Inc., 37 NY3d at 111; O’Brien v. City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v. Goord, 9 NY3d at 390; Tracey v. Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). The parties and subject matter in the instant matter and the Supreme Court Action are identical (Healthway Med. Care, P.C. v. American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *1). Any judgment in Plaintiff’s favor in our instant action would adversely affect the rights and interests created by the judgment in the Supreme Court Action (Metro Health Prods., Inc. v. Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Healthway Med. Care, P.C. v. American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *2). Thus res judicata bars Plaintiff’s action (Active Care Med. Supply Corp. v. American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] *2 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v. Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Here, Judge K. rendered an order in the Supreme Court Action deciding Defendant in our instant case was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Plaintiff’s assignor, Javier (Motion, Kang Aff., Ex. E at 4). Therefore, Defendant is entitled to summary judgment dismissing Plaintiff’s complaint (Metro Health Prods., Inc. v. Nationwide Ins., 2017 NY Slip Op 50607[U] *1; Active Care Med. Supply Corp. v. American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Atlantic Chiropractic, P.C. v. Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51072[u] *2 [App Term 2d Dept 2016]). Even though Supreme Court entered judgment on Plaintiff’s default in the Supreme Court Action, the judgment constitutes a conclusive final determination because Plaintiff’s default in the Supreme Court action has not been vacated (Active Care Med. Supply Corp. v. American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Infinity Chiropractic Health, P.C. v. Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). IV. Order Accordingly, it is ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint is granted and Plaintiff’s complaint is dismissed; and it is further ORDERED that the part clerk is directed to dispose the index number for all purposes. This constitutes the Decision and Order of the court. Dated: September 8, 2021
