BRONX CHIROPRACTIC REHABILITATION v. PROGRESSIVE INSURANCE COMPANY (2020)

In this action by Plaintiff medical provider to recover No-Fault benefits, Defendant insurer moves for dismissal of the complaint on grounds that the Plaintiff's claims are barred by a declaratory judgment in Supreme Court. Plaintiff opposes the motion and cross-moves for summary judgment.

Relying on the recently decided Quality Health Supply Corp. v. Hertz Co., 2020 N.Y. Slip Op. 50996(U), 2020 WL 5362035, Plaintiff argues that the Supreme Court Declaratory Judgment issued in Progressive Max Insurance Company v. Mykia Black, et al., index number 003809/16, does not apply to or otherwise bar this action under the doctrine of res judicata or collateral estoppel because the defendant herein is Progressive Insurance Company not Progressive Max Insurance Company. In the Supreme Court action, which named Essie Bryant (assignor herein), Mykia E. Black (the insured) and Bronx Chiropractic Rehabilitation, P.C. among the defendants, the Hon. Anthony Parga declared the policy null and void as to the December 2, 2015 incident.

In Quality Health Supply Corp. v. Hertz Co., a declaratory judgment action brought on by Hertz, Vehicles, LLC against Quality Health and its assignor was granted on default. Thereafter, Hertz Co. sought to amend the caption of the civil court case to name Hertz Vehicles, LLC as the proper party and to dismiss the action against it pursuant to the declaratory judgment. The Appellate Term found that the defendant had failed to submit evidence that plaintiff had sued the wrong party and therefor it couldn't show that there had been a final adjudication of the civil court claims on the merits by the declaratory judgment.

In this case, however, Defendant proffered the affidavit of Christina Plante, a Senior Medical Claims Representative employed by Progressive Casualty Insurance Company, who averred that the Declaration page, lists Progressive Max Insurance Company as the insuring entity for Mykia E. Black under her policy number 907911812. Defendant also attached to its motion papers a certified copy of the Declaration Page which lists Progressive Max as the insurance company underwriting the policy at issue. Thus, the court finds that the proper insurer has always been Progressive Max Insurance Company, not Progressive Insurance Company as Plaintiff erroneously named herein. Accordingly, Plaintiff's action is barred by the doctrine of res judicata. The Declaratory Judgment issued by the Honorable Anthony Parga collaterally estops this civil court action.

While it would have been better practice for Defendant herein to have also moved to amend the caption to name Progressive Max the proper party, the failure to do so does not affect a substantial right of the plaintiff and it is sua sponte granted herein. It is noted that the Declaration Page of the policy at issue gave notice to the plaintiff that Progressive Max was the entity insuring the driver Mykia E. Black. Plaintiff's mistake in not naming Progressive Max should not be to the detriment of Defendant.

The caption shall be amended as follows:

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF KINGS

x

Index No. 712403/18

Bronx Chiropractic Rehabilitation, P.C.

A/A/O Bryant, Essie R,

Plaintiff,

against

Progressive Max Insurance Company

Defendant.

x

Accordingly, the caption is amended to name Progressive Max Insurance Company as the correct defendant and the action is dismissed with prejudice pursuant to the Declaratory Judgment issued by the Hon. Anthony Parga as noted herein.

This constitutes the decision and order of this court.

Consuelo Mallafre Melendez, J.