City Care Acupuncture, P.C. v. Mercury Cas. Co.

<div align="center">City Care Acupuncture, P.C., as Assignee of Shantall Smith, Appellant,

against Mercury Casualty Co., Respondent.

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Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), dated May 27, 2016. The order granted an unnoticed (see CPLR 2211) motion by defendant to dismiss the complaint.

ORDERED that, on the court's own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CCA 1702 [a] [2]; [c]); and it is further,

ORDERED that the order is reversed, with $30 costs, and defendant's motion to dismiss the complaint is denied.

After plaintiff, City Care Acupuncture, P.C. (City Care), commenced this action to recover assigned first-party no-fault benefits, defendant, Mercury Casualty Co. (Mercury), brought a declaratory judgment action in the Supreme Court, Nassau County, against City Care and its assignor herein, among others, seeking a declaration that, among other things, Mercury has no duty to provide coverage for claims arising out of the accident at issue. Although City Care served an answer in the Supreme Court action, its assignor did not appear, and, as a result, Mercury moved in the Supreme Court, pursuant to CPLR 3215, for a default judgment against the assignor. In its order dated March 23, 2016, the Supreme Court noted that Mercury had commenced an action for declaratory relief and that the assignor had failed to file an answer. [*2]Consequently, the Supreme Court granted the unopposed motion to enter a default judgment against the assignor. Shortly thereafter, Mercury moved in the Civil Court to dismiss the present complaint on the ground that, in view of the March 23, 2016 Supreme Court order, City Care's action is barred by the doctrine of res judicata. City Care opposed Mercury's motion. City Care appeals from an order of the Civil Court, dated May 27, 2016, which granted Mercury's motion.

For the reasons stated in Jamaica Wellness Med., P.C., as Assignee of Shantall Smith v Mercury Cas. Co. ( [appeal No. 2016-2049 K C], decided herewith), the order is reversed and defendant's motion to dismiss the complaint is denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 13, 2018

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City Care Acupuncture, P.C. v. Mercury Cas. Co.

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