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 July 6, 2020 (“Motion”) and electronically filed with the court on July 7, 2020. 1 Plaintiff’s Affirmation in Opposition dated January 13, 2022 (“Opposition”) and electronically filed with the court on the same date. 2 Defendant’s Reply Affirmation dated January 13, 2022 (“Reply”) and electronically filed with the court on January 14, 2022. 3 II. Background In a summons and complaint filed January 22, 2015, nonparty Budget Truck Rental, LLC commenced an action in Supreme Court, New York County against Plaintiff among others who provided medical treatment to nonparty claimant Gourdet for injuries sustained in a vehicle collision (“Supreme Court Action”) (Budget Truck Rental, LLC v. Darren T. Mollo, D.C., et al., Sup. Ct. NY County, Index No. 150666/15) (see Motion, Aff. of Hyman, Ex. D). In a summons and complaint filed May 9, 2019 in Queens Civil Court, Plaintiff sued Defendant insurance company to recover $1,636.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Leon for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Hyman Aff., Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Defendant was not responsible for payment of No-Fault benefit claims and alternatively that the action was barred by res judicata. Plaintiff opposed Defendant’s motion. III. Discussion Defendant contended that it was not subject to the No-Fault regulations because it was neither an insurer nor self-insured. It is well established that the No-Fault regulations “shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law” (11 NYCRR §65-3.1). Insurer is defined as “the insurance company or selfinsurer, as the case may be, which provides the financial security required by article six, eight, or forty-four-B of the vehicle and traffic law” (Insurance Law 5102[g]). A self-insurer is “any person, firm, association or corporation that [1] maintains a form of financial security other than an owner’s automobile insurance policy in satisfaction of article 6 or 8 of the New York Vehicle and Traffic Law; or [2] is subject to article 51 of the New York Insurance Law as provided in section 321 of the New York Vehicle and Traffic Law” (11 NYCRR §65-2.1[a]). Defendant presented an affidavit dated July 2, 2020, in which Weber, employed by Defendant as a litigation consultant, attested that Defendant was the third-party administrator of Avis Budget Group and related companies and processed and issued payment of No-Fault claims (see Motion, Hyman Aff., Ex. C). Weber further attested that Defendant “[was] not an insurance company and [was] not directly responsible to personally pay for New York No-Fault benefits on behalf of its clients including Avis” (id. at 1), and “[was] not an insurer or a self-insured” and “[did] not write the automobile insurance policies covering motor vehicles involved in accidents” giving rise to No-Fault claims (id. at 4). In opposition, Plaintiff failed to address dismissal on this ground and provided no evidence in rebuttal. Therefore, the Court finds that dismissal is warranted. It is noted, however, that this Court would have rejected Defendant’s alternative grounds for dismissal under res judicata doctrine. “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]). In our instant case, res judicata is inapplicable because Defendant failed to establish that it was the same party as Plaintiff in the Supreme Court Action, Budget Truck Rental, LLC. 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: May 12, 2022
