Opinion
2010-2225 K C
12-16-2011
City Dental Services, P.C. as Assignee of IRINA DURNYEVA, MARCIA GRAY, ALBERT ILYAYEV, MIKHAIL KAYUMOV, NINO MAMUKELASHVILI and NATELA MOSIASHVILI, Respondent, v. New York Central Mutual, FIRE INSURANCE COMPANY, Appellant.
PRESENT: : , P.J., RIOS and STEINHARDT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 7, 2010. The order, insofar as appealed from, denied defendant's motion for partial summary judgment dismissing the fifth and sixth causes of action and implicitly found, for all purposes in the action, that plaintiff has established each element of its case with respect to those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking partial summary judgment dismissing the sixth cause of action is granted, and by further providing that so much of the order as implicitly found, for all purposes in the action, that plaintiff has established each element of its case with respect to the fifth and sixth causes of action is vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing the fifth and sixth causes of action and plaintiff cross-moved for partial summary judgment on the same causes of action. The Civil Court found that "the bills were timely mailed to Defendant and Defendant timely denied." The court denied the branch of defendant's motion seeking partial summary judgment dismissing the fifth cause of action, finding the sole issue for trial to be the medical necessity of the billed-for services. The court denied the branch of defendant's motion seeking partial summary judgment dismissing the sixth cause of action on the ground that a declaratory judgment, which defendant had argued was res judicata as to that cause of action, had been entered on default and thus did not preclude the litigation of this cause of action.
The branch of defendant's motion seeking partial summary judgment dismissing the sixth cause of action should have been granted. Defendant demonstrated that it had commenced a declaratory judgment action in Supreme Court alleging, among other things, that the "accident" at issue in this case had been staged. Defendant further established that a judgment had been entered in that action, on default, declaring that defendant herein was not required to pay any money to any party named as a defendant in that declaratory judgment action for claims arising from the incidents that were the subject of that action. Both plaintiff herein and the assignor whose claims are the subject of plaintiff's sixth cause of action were named as defendants in the declaratory judgment action. As plaintiff has not alleged that it lacked notice of the prior action, or that it has taken any steps to vacate its default in that action, it is precluded from litigating the issue of whether defendant is required to reimburse plaintiff for claims arising out of the subject incident (see Gaston v American Tr. Ins. Co., 40 AD3d 578 [2007]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
The branch of defendant's motion seeking partial summary judgment dismissing the fifth cause of action was properly denied, as defendant's affirmed peer review report was insufficient to demonstrate, prima facie, that the billed-for services were not medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Finally, so much of the order appealed from as implicitly found, pursuant to CPLR 3212 (g), that plaintiff has established each element of its case with respect to the fifth cause of action is vacated, as plaintiff's submissions failed to establish proof of the fact and the amount of the loss sustained (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that the branch of defendant's motion seeking partial summary judgment dismissing the sixth cause of action is granted, and by further providing that so much of the order as implicitly found, pursuant to CPLR 3212 (g), that plaintiff has established each element of its case with respect to the fifth and sixth causes of action is vacated.
Pesce, P.J., Rios and Steinhardt, JJ., concur.