Consuelo Mallafre Melendez, J.
Plaintiff, Law Office of Zara Javakov Esq., P.C., Zachary Albright Whiting, Esq., 100 Livingston Street, 4th Floor Brooklyn, NY 11201 Defendant Rivkin Radler LLP, Michelle Rita, Esq., 926 RXR Plaza, Uniondale, NY 11556-0926 Consuelo Mallafre Melendez, J.
The court's Decision and Order is based upon consideration of the following papers: CPLR 2219(a) Recitation ORDER TO SHOW CAUSE & AFFIDAVITS ANNEXED 1 OPPOSITION/CROSS-MOTION 2 REPLY/OPPOSITION TO CROSS-MOTION EXHIBITS
In an order to show cause dated August 7, 2019, Defendant moves pursuant to CPLR 2221(d)(2) to reargue this court's Decision/Order dated March 27, 2019. Defendant asserts that this court misapplied the law when it denied Defendant's motion for summary judgment which was based upon Plaintiff's failure to appear at the scheduled Examinations Under Oath (EUO). Defendant states that the Nassau County Supreme Court made a final determination on this issue in a declaratory judgment dated August 22, 2018 (Supreme Court Order). Defendant argues that under the doctrine of res judicata the Supreme Court Order was a declaratory judgment which made a final determination of fact that now precludes Plaintiff's cause of action to recover no-fault benefits. Defendant disputes this court's finding that the Supreme Court Order was an order granted on default with no preclusive effect rather than a declaratory judgment with the full force and effect of a court's ruling on substantive issues of fact and law.
The relevant portion of the Order reads as follows: "Defendant's motion is denied to the extent it claims the order dated August 22, 2018 in State Farm Mutual Automotive Ins. Co et al v. Psychology After Accident, PC Nassau Cty Index #614025/18 has a preclusive affect. The Court finds that the Nassau County order is merely a judgment on default and not a declaratory judgment..." See, Active Chiro v. 21st Century Ins. Co., 58 Misc 3d 140 (A) (App Term, 2d Dept 2018)."
Based on the following analysis, this court grants Defendant's motion to reargue, vacates its prior Decision/Order and issues this Decision in its place.
This court acknowledges that it erred in finding that the Supreme Court Order did not have a preclusive effect because it was granted on default. As Defendant correctly argues, the fact that its declaratory judgment was granted on Plaintiff's default is irrelevant to its preclusive effect: "[a] Supreme Court's order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default" (Ava Acupuncture, P.C. v. NY Central Mut. Fire Ins. Co., 34 Misc 3d 149[A] [App Term, 2d Dept. 2d, 11th and 13th Jud Dists 2012]; Atlantic Chiropractic, P.C. v. Utica Mutual Ins. Co., 62 Misc 3d 145[A] [Sup Ct, App Term, 2d Dept. 2d, 11th and 13th Jud Dists 2019]).
The language in the Supreme Court Order, while sparse, is sufficient to articulate a final determination concerning Plaintiff's failure to satisfy a condition precedent in order to seek reimbursement of no-fault benefits. The Supreme Court Order does not mention EUO's, but it does refer to the Summons and Verified Complaint Defendant submitted in support of its application for a declaratory judgment. In the second paragraph of the Verified Complaint Defendant explicitly stated that it sought a declaratory judgment based upon Plaintiffs' failure to appear for the EUO's (Def. 1 exh. 2). Therefore, the Supreme Court Order does have a preclusive effect on this matter and the doctrine of res judicata bars Plaintiff's action to recover no-fault benefits.
The Supreme Court Order only states that Defendant "seeks declaration that it is under no obligation to reimburse [Plaintiff] for services based upon [Plaintiff's] failure to satisfy conditions precedent to coverage or verify their claims as required by law" (Supreme Court Order). --------
Accordingly, the court's Decision/Order dated March 27, 2019 is vacated and this Decision stands in its place.
This constitutes the decision and order of this court. December 2, 2019 Brooklyn, NY ENTER. CONSUELO MALLAFRE MELENDEZ Judge, Civil Court