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Pomona Medical Diagnostics, P.C., a/a/o Jarrod Ward v. Metropolitan Casualty Ins. Co

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


November 26, 2010

POMONA MEDICAL DIAGNOSTICS, P.C., A/A/O JARROD WARD, PLAINTIFF-RESPONDENT,
v.
METROPOLITAN CASUALTY INS. CO., DEFENDANT-APPELLANT.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered April 15, 2010, which denied its motions for summary judgment dismissing the complaints.

Per curiam.

Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co.

Decided on November 26, 2010

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Order (Fernando Tapia, J.), entered April 15, 2010, reversed, with $10 costs, defendant's motions for summary judgment granted and the complaints dismissed. The Clerk is directed to enter judgment accordingly.

In a separate action commenced by defendant-insurer against various medical providers, including plaintiff herein, Supreme Court, Kings County (Richard Velasquez, J.), declared in a judgment resolving that action that defendant may deny all no-fault claims arising from injuries sustained by plaintiff's assignor, Jarrod Ward, in a May 21, 2008 motor vehicle accident. Based upon this Supreme Court judgment, the underlying actions commenced by plaintiff to recover assigned, first-party no-fault benefits for medical services rendered to Jarrod Ward for injuries sustained in the May 21, 2008 accident are barred under the doctrine of res judicata (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [2009]). Notably, a different judgment in the underlying actions would destroy or impair rights established by the judgment rendered by Supreme Court, Kings County in the prior action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff's claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on the default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see Trisingh Enters., Inc. v Kessler, 249 AD2d 45 [1998]; Robbins v Growney, 229 AD2d 356 [1996]). Therefore, Civil Court should have granted defendant's motion for summary judgment dismissing the underlying actions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: November 26, 2010

20101126

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