In New Millennium Medical Imaging a/a/o Nicholas Toc v. American Transit Ins. Co., 2016 N.Y. Slip Op. 50259, provider commenced an action in Civil Court to collect on the unpaid bills. In the interim, the insurer filed a DJ Action based on IME No Show. Insurer obtained a default judgment and sought to dismiss the Civil Court Action based on Res Judicata. The Court denied the insurer’s summary judgment motion saying:
American Transit failed to establish its entitlement to summary judgment, because its own papers presented two different accident dates, March 17, 2012 and April 2, 2012. Thus, a question of fact exists as to whether plaintiff’s claim arose out of the same transaction as was in controversy in the Supreme Court litigation (see Schuylkill Fuel Corp., 250 NY at 306-307; Albanez, 134 AD3d 657; Eagle Surgical Supply, Inc., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U]). We decline to consider the assignment of benefits form which American Transit proffered to show the date of the accident at issue, as the assignment of benefits form was submitted for the first time in American Transit’s reply papers (see L’Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d 692 ; GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 ).