NEW CAPITAL INC v. KEMPER INDEPENDENCE INSURANCE COMPANY (2022)

Order (Aija Tingling, J.), entered April 6, 2022, reversed, without costs, defendant's motion for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

In a separate action commenced by the defendant-insurer against various medical providers, including the plaintiff herein, the Supreme Court, New York County (Lynn R. Kotler, J.), declared that the defendant has no duty to pay the plaintiff's no-fault claims arising from injuries allegedly sustained by its assignor, Carol Smart, in a February 15, 2019 motor vehicle accident. Based upon this Supreme Court judgment, the underlying action commenced by the plaintiff to recover first-party no-fault benefits for medical services rendered to Carol Smart for injuries sustained in the subject accident is barred under the doctrine of res judicata (see Pomona Med. Diagnostics, P.C. v. Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]; see also Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]). A different judgment in the underlying action would destroy or impair rights established by the judgment rendered by Supreme Court in the related action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; see also BDO Seidman LLP v Strategic Resources Corp., 70 AD3d 556, 560 [2010]). The Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on default, as res judicata applies to a judgment taken on default that has not been vacated (see McGookin v Berishai, 187 AD3d 472, 474 [2020]; Trisingh Enters. v Kessler, 249 AD2d 45, 46 [1998]).

Accordingly, the court should have granted defendant's motion for summary judgment dismissing the instant action.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur