Parisien v. Kemper Ins. Co.

• Decision Date: 22 July 2022
• Docket Number: 2021-585 K C
• Citation: 76 Misc.3d 18,174 N.Y.S.3d 786
• Parties: Jules Francois PARISIEN, M.D., as Assignee of Jagdeo, Jeremy, Appellant, v. KEMPER INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Term

76 Misc.3d 18
174 N.Y.S.3d 786

Jules Francois PARISIEN, M.D., as Assignee of Jagdeo, Jeremy, Appellant,
v.
KEMPER INSURANCE COMPANY, Respondent.

2021-585 K C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist.

Decided on July 22, 2022

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

Gullo & Associates, LLC (Kristina O'Shea of counsel), for respondent.

PRESENT: MICHELLE WESTON, J.P., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ.

76 Misc.3d 19

ORDERED that the order is affirmed, with $25 costs.

Jules Francois Parisien, M.D., commenced this action against Kemper Insurance Company to recover assigned first-party no-fault benefits for medical services provided to his assignor, Jeremy Jagdeo, as a result of injuries Jagdeo allegedly sustained in an automobile accident on June 17, 2013. In its answer to the complaint, dated April 21, 2016, defendant identified itself as Unitrin Advantage Insurance Company (Unitrin). Before Parisien commenced this action, a declaratory judgment action had been commenced in Supreme Court, New York County, by Unitrin against Parisien, eight other providers, and the assignor herein, Jagdeo, alleging that Jagdeo had breached the terms of the insurance policy in question by failing to appear for duly scheduled independent medical examinations. Parisien appeared and interposed an answer in the declaratory judgment action. In an order entered September

76 Misc.3d 20

11, 2017, the Supreme Court, upon granting an unopposed motion by Unitrin for summary judgment, declared that Parisien and five other providers were "not entitled to no-fault coverage for the motor vehicle accident that occurred on June 17, 2013 involving Jeremy Jagdeo."

Plaintiff moved in the Civil Court for summary judgment, and defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. By order entered August 10, 2021, the Civil Court denied plaintiff's motion and granted defendant's cross motion.

Collateral estoppel, or issue preclusion, precludes a party from relitigating an issue where "the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action" ( Parker v. Blauvelt Volunteer Fire Co. , 93 N.Y.2d 343, 349, 690 N.Y.S.2d 478, 712 N.E.2d 647...