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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------ ----------------------------------------X
LIBERTY MUTUAL INSURANCE COMPANY and
LM GENERAL INSURANCE COMPANY,
Plaintiff(s), Index No. 654092/2019
-against- ANSWER
KENDON THOMAS,
("Individual Defendant")
AND
AMRO CARE PT, P.C., LAWRENCE
CHIROPRACTIC DIAGNOSTIC SERVICE,
NORTH SHORE HOME CARE SERVICES, INC.,
AVA COSTUM SUPPLY, INC., OPUS
PSYCHOLOGICAL SERVICES, P.C.,
SI ACUPUNCTURE, P.C., METRO PAIN
SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC,
CITIMEDICAL 1, PLLC, MAURO
CHIROPRACTIC, P.C., HARBOR MEDICAL
GROUP, P.C., ACUTUS RX, LLC, AK
GLOBAL SUPPLY CORP.
("Medical Provider Defendants")
Defendants.
__ -------------------------------------------------X
PLEASE TAKE NOTICE that Defendant, Harbor Medical Group P.C.
("Harbor"), hereby appears in this action.
PLEASE TAKE FURTHER NOTICE that Harbor, by itsattorneys, ABRAMS,
FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF &
CARONE, LLP, hereby interposes the following Answer to the Complaint herein:
1. Harbor lack knowledge or infhrroation sufficient to form a belief as to the
"1," "2," "3," "4,"
truth, veracity or lack thereof of the allegations set forth in paragraphs
"5," "6," "7," "8," "9," "10," "11," "12," "13," "14," "15," "16," "17," "18," "20," "21,"
1
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"22," "23," "24," "25," "26," "27," "28," "29," "30," "31," "32," "33," "34," "35," "36,"
"37," "38"
and of the Complaint.
"19"
2. Harbor admits the allegations set forth in paragraph of the Complaint
to the extent that Harbor is a domestic corporation which has or is transacting business in
the State of New York.
"39"
3. Harbor admits the allegations set forth in paragraph of the Complaint.
"40," "45," "49," "52," "56"
4. As to paragraphs and of the Complaint, Harbor
repeats, reiterates, and incorporates itsresponses set forth in the preceding and subsequent
paragraphs within Plaintiff's Complaint.
"41," "42," "43," "44,"
5. Harbor denies the allegations set forth in paragraphs
"46," "47," "48," "50," "51," "53," "54," "55," "57," "58," "59"
and of the Complaint.
AS AND FOR HARBOR'S FIRST AFFIRMATIVE DEFENSE
6. Plaintiff's Complaint fails to state a claim for which relief may be granted.
Indeed, Plaintiff failed to mbstantiate its allegations by way of admissible evidence.
AS AND FOR HARBOR'S SECOND AFFIRMATIVE DEFENSE
7. Plaintiff's current action is barred pursuant to the doctrines of res judicata,
collateral estoppel, and prior action pending.
AS AND FOR HARBOR'S THIRD AFFIRMATIVE DEFENSE
8. This Court lacks jurisdiction over the instant matter as issues No-
regarding
Fault reimbursement are issues to be determined by lower trialcourts.
AS AND FOR HARBOR'S FOURTH AFFIRMATIVE DEFENSE
9. The Complaint conhine one or more causes of action which are barred by
the doctrine of estoppel.
2
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AS AND FOR HARBOR'S FIFTH AFFIRMATIVE DEFENSE
10. The Complaint contains one or more causes of action which are barred by
the doctrine of waiver.
AS AND FOR HARBOR'S SIXTH AFFIRMATIVE DEFENS_E
11. This Court lacks personal jurisdiction over the Defeñdants.
AS AND FOR HARBOR'S SEVENTH AFFIRMATIVE DEFENSE
12. The Complaint contains one or more causes of action that are barred by the
applicable statute of limitations.
AS AND FOR HARBOR'S EIGHTH AFFIRMATIVE DEFENSE
13. Granting the Plaintiffs demand in the Complaint would result in Unjust
Enrichment.
WHEREFORE, Harbor hereby damands judgment dismissing Plaintiff's
declaratory judgm=t action in its entirety, and further demand statutory attorney's fees
pursuant to 11 N.Y.C.R.R. 65-4.6(e), together with costs, disbursements and expenses of
this action, and for any and all further relief which the Court deems just and proper.
Dated: Lake Success, New York
August 7, 2019
Yours, etc.
Anthony J. DiChiara, Esq.
ABRAMS, FENSTERMAN,
FENSTERMAN, EISMAN, FORMATO,
FERRARA, WOLF & CARONE, LLP
3 Dakota Drive, Suite 300
Lake Success, NY 11042
Attorneys for Defendant
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TO:
Burke, Conway & Steifeld
10 Bank Street, Suite 1200
White Plains, New York 10606
Attorneys for Plaintiff
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AFFIRMATION OF SERVICE
STATE OF NEW YORK)
)ss.:
COUNTY OF NASSAU)
Anthony DiChiara, Esq., an attorney duly admitted to practice law before the Courts
of the State of New York, under the penalty of perjury, affirms the following:
On August 7, 2019, I served the following:
DEFENDANTS'
ANSWER
The undersigned mailed the same on the date listed below to the address listed below. In
addition, the undersigned uploaded the same on the date listed below to the New York State
Court Electronic Filing portal:
Addressee(s): Burke, Conway & Steifeld
10 Bank Street, Suite 1200
White Plains, New York 10606
Attorneys for Plaintiff
7th
Date of Mailing: DAY OF AUGUST 2019
Anthony DiChiara Esq.
Date: August 7, 2019
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Index No: 654092 Year: 2019
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
LIBERTY MUTUAL INSURANCE COMPANY and
LM GENERAL INSURANCE COMPANY,
Plaintiff,
-against-
KENDON THOMAS,
("Individual Defendant")
AND
AMRO CARE PT, P.C., LAWRENCE
CHIROPRACTIC DIAGNOSTIC SERVICE,
NORTH SHORE HOME CARE SERVICES, INC.,
AVA COSTUM SUPPLY, INC., OPUS
PSYCHOLOGICAL SERVICES, P.C.,
SI ACUPUNCTURE, P.C., METRO PAIN
SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC,
CITIMEDICAL 1, PLLC, MAURO
CHIROPRACTIC, P.C., HARBOR MEDICAL
GROUP, P.C., ACUTUS RX, LLC, AK
GLOBAL SUPPLY CORP.
("Medical Provider Defendants")
Defendants.
DEFENDANTS'
ANSWER
ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN
FORMATO, FERRARA, WOLF AND CARONE, LLP
Defendants'
Attorneys for
To: Signature
Attorney(s) for Plaintiff ANTHON DICHIARA, ESQ
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LIBERTY MUTUAL INSURANCE COMPANY, ET AL.,
INDEXNo. 654092/19
Plaintiffs,
ANSWER WITH COUNTER-CLAIM
-against-
KENDON THOMAS, ET AL., File No. 37,475
Defendant.
.____.................______._______________________......._______________.
Defendant, AK GLOBAL SUPPLY CORP,, by itsattomeys, KOPELEVICH & FELDSHEROVA, PC,
(hereinafter "Answering Daha=+"), as and for its answer respectfully alleges upon information and belief
as follows:
1 Denies any knowledge and information sufficient to form a belief as to each and every allegation
contained in the paragraph of the complaint therein designated as 1-20, 22, 25, 28-38, 41-44, 46-48,
50-51, 53-55, and 57-59 and refers allquestions of law to this Honorable Court.
2 Denies any knowledge and information sufficient to form a belief as to each and every allegation contained
in the paragraph of the complaint therein designated as 26 EXCEPT admit that Answering Defendant
submitted bills to Plaintiff for No-Fault reimbursement as assignee of KENDON THOMAS.
3 Denies any knowledge and information sufficient to form a belief as to each and every allegatiõn contained
in the paragraph of the complaint therein designated as 27 EXCEPT admit that Answering Defeñdent
submitted bills to Plaintiff for No-Fault reimbursement as assignee of KENDON THOMAS.
4 Denies any kñGwicdge and information sufficient to form a belief as to each and every allegation contained
in the paragraph of the complaint therein designated as 39 EXCEPT admit that Answering Defendant
submitted bills to Plaintiff for No-Fault reimbursement as assignee of KENDON THOMAS.
5 To the extent that Plaintiff repeats, reiterates and realleges prior allegations of the complaint as set forth in
paragraphs 40, 45, 49, 52 and 56, Answering Defendant repeats, reiterates and reallges each and every
admission, denial and allegation set forth above with the same force and effect as if stated here in full.
AS FOR THE FIRST, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff's complaint fails to state a proper and valid cause of action in each and every cause of action
upon which reliefmay be granted, and is thus fatally defective.
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AS FOR THE SECOND, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE.
Venue is improper.
AS FOR THE THIRD, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Forum non conveniens.
AS FOR THE FOURTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff has failed to properly commence the instant action.
AS FOR THE FIFTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Statutes of limitations have expired on the Plaintiff's action.
AS FOR THE SIXTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff lacks legal capacity to sue.
AS FOR THE SEVENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff lacks stãñdiñg to bring this cause of action against the Answering Defendant because the
Answering Defendant owes no duty to Plaintiff.
AS FOR THE EIGHTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff is barred from disclaiming liability under the doctrine of laches and equitable estoppel.
AS FOR THE NINTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
There are other actions pending for the same causes of action, therefore, this case is barred.
AS FOR THE TENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Necessary parties have not been included as parties to this action,
AS FOR THE ELEVENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
The alleged causes of action are barred by any prior payment, release or settlement.
AS FOR THE TWELFTH, SEPARATE, AND DISTINCT
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AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff will be unjustly enriched.
AS FOR THE THIRTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
The Answering Defendant did not deceive or cause others to deceive the Plaintiff.
AS FOR THE FOURTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE
Plaintiff's damages if any are the result of its own fraudulent practices.
AS FOR THE FIFTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
That in the event any judgment or verdict is rendered in favor of Plaintiff, the Answering Defendant is
entitled to have such judgment or verdict reduced by the amounts of any collateral payments.
AS FOR THE SIXTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Upon information and belief Plaintiff is barred from making this claim because of the failure of
Plaintiff to comply with all the insurance laws, rules and regulations.
AS FOR THE SEVENTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff failed to issue timely denials of Defendant's claims.
Answering
AS FOR THE EIGHTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
All bills as submitted to Plaintiff by the Añswering Defendant were not fraudulent.
AS FOR THE NINETEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
The Answering Defendant did not breach the provisions of the insurance policy issued by Plaintiff.
AS FOR THE TWENTIETH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
The Answering Defeñdañt is properly incorporated and operates pursuant to the applicable laws and
regulations of the State of New York.
AS AND FOR THE TWENTY-FIRST, SEPARATE, AND DISTINCT
AFFIRMATIVE DEFENSE:
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The Plaintiff failed to provide proper notice of the EUOs to all parties as required the No-
necessary by
Fault Regulations.
AS FOR THE TWENTY-SECOND, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
The Plaintiff failed to issue timely and proper requests for EUOs pursuant to the No-Fault Regulations.
AS FOR THE TWENTY-THIRD SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff failed to timely schedule EUOs.
AS FOR THE TWENTY-FOURTH SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff's EUO notices were insufficient.
AS FOR THE TWENTY-FIFTH SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff failed to timely and properly deny Answering Defendant's claims on the grounds of KENDON
THOMAS'
failure to appear for EUOs.
AS FOR THE TWENTY-SIXTH SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
KENDON THOMAS appeared for EUOs.
AS FOR THE TWENTY-SEVENTH SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff lacks reasonable basis for requesting EUOs of KENDON THOMAS.
AS FOR THE TWENTY-EIGHTH SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
All services provided by Answering Defendant were causally related to an insured incident.
AS FOR THE TWENTY-NINTH SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Any denials issued by Plaintiff failed to preserve relevant defenses to coverage.
AS FOR THE THIRTIETH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff failed to timely and properly deny Answering Defendant's claims.
AS FOR THE THIRTY-FIRST, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
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Improper Service.
AS FOR THE THIRTY-SECOND, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE
Lack of personal jurisdiction.
AS FOR THE THIRTY-THIRD, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Res judicata
AS FOR THE THIRTY-FOURTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Collateral Estoppel
AS AND FOR A FIRST COUNTER-CLAIM
Defendant-Plaintiff, Answering Defendant on the Counter-Claim alleges:
1. Plaintiffs-Defeñdâñts on the counter-claim, LIBERTY MUTUAL INSURANCE COMPANY, ET
AL., (hereinafter, "INSURER") issued insurance policies to its insured, (hereinafter,
"POLICYHOLDER"), requiring INSURER to defeñd or/and indemnify the POLICYHOLDER and
other eligible injured parties under the policy in any lawsuit involving said insurance contract
including in the action brought by INSURER.
2. On or about June 17, 2019, INSURER commenced the instant declaratory judgment action in
Supreme Court of the State of New York, COUNTY OF NEW YORK, against Answering Defendant,
seeWg a declaration that Answering Defendant is not entitled to reimbursement for medical services
billed to INSURER. The action of the 1NSURER is premised upon the allegation that Answering
Defendant failed to attend Ex-±±-ns Under Oath and as such breached condition precedent to
coverage.
3. Due to the instant action, the Answering Defendant has been damaged and compelled to employ an
attorney for representation regarding the instant matter. As a result of this action, the Answering
Defendant has already incurred, and will continue to incur, attorney's fees and other expenses with
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regard to its defense in the instant action. As such, the Answering Defendant has been and will
continue to be daiñãged in the sum that shall be determined at the trialor on inquest of this matter.
4. In the event that Answering Defendant prevails in the instant action, Answering Defendant demands
attorney's fees against INSURER pursuant to the insurance contract, pursuant to the Court of Appeals
decision in US Underwriters Ins. Co. v. City Club Hotel, LLC, et al., 3 NY3d 593, 822 NE2d 777
(2004), and pursuant to the amended attorney's fees provisions within the No-Fault regulations. Said
amendments are effective for suits filed on or after February 4, 2015 and allow for attorney's to
recover hourly fees for court proceedings which involve a policy issue, 11 NYCRR 65-4.6(c).
***
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FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 08/07/2019 02:15 02 : 50 PM PM| INDEX INDEX NO. NO. 654092/2019 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 2 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 08/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------ ----------------------------------------X LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiff(s), Index No. 654092/2019 -against- ANSWER KENDON THOMAS, ("Individual Defendant") AND AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICE, NORTH SHORE HOME CARE SERVICES, INC., AVA COSTUM SUPPLY, INC., OPUS PSYCHOLOGICAL SERVICES, P.C., SI ACUPUNCTURE, P.C., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL 1, PLLC, MAURO CHIROPRACTIC, P.C., HARBOR MEDICAL GROUP, P.C., ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP. ("Medical Provider Defendants") Defendants. __ -------------------------------------------------X PLEASE TAKE NOTICE that Defendant, Harbor Medical Group P.C. ("Harbor"), hereby appears in this action. PLEASE TAKE FURTHER NOTICE that Harbor, by itsattorneys, ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP, hereby interposes the following Answer to the Complaint herein: 1. Harbor lack knowledge or infhrroation sufficient to form a belief as to the "1," "2," "3," "4," truth, veracity or lack thereof of the allegations set forth in paragraphs "5," "6," "7," "8," "9," "10," "11," "12," "13," "14," "15," "16," "17," "18," "20," "21," 1 1 of 6 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 08 /07 /2019 02:15 02 : 50 PM PM| INDEX INDEX NO. NO. 654092/2019 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 2 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 08/07/2019 "22," "23," "24," "25," "26," "27," "28," "29," "30," "31," "32," "33," "34," "35," "36," "37," "38" and of the Complaint. "19" 2. Harbor admits the allegations set forth in paragraph of the Complaint to the extent that Harbor is a domestic corporation which has or is transacting business in the State of New York. "39" 3. Harbor admits the allegations set forth in paragraph of the Complaint. "40," "45," "49," "52," "56" 4. As to paragraphs and of the Complaint, Harbor repeats, reiterates, and incorporates itsresponses set forth in the preceding and subsequent paragraphs within Plaintiff's Complaint. "41," "42," "43," "44," 5. Harbor denies the allegations set forth in paragraphs "46," "47," "48," "50," "51," "53," "54," "55," "57," "58," "59" and of the Complaint. AS AND FOR HARBOR'S FIRST AFFIRMATIVE DEFENSE 6. Plaintiff's Complaint fails to state a claim for which relief may be granted. Indeed, Plaintiff failed to mbstantiate its allegations by way of admissible evidence. AS AND FOR HARBOR'S SECOND AFFIRMATIVE DEFENSE 7. Plaintiff's current action is barred pursuant to the doctrines of res judicata, collateral estoppel, and prior action pending. AS AND FOR HARBOR'S THIRD AFFIRMATIVE DEFENSE 8. This Court lacks jurisdiction over the instant matter as issues No- regarding Fault reimbursement are issues to be determined by lower trialcourts. AS AND FOR HARBOR'S FOURTH AFFIRMATIVE DEFENSE 9. The Complaint conhine one or more causes of action which are barred by the doctrine of estoppel. 2 2 of 6 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 08/07/2019 02:15 02 : 50 PM PM| INDEX INDEX NO. NO. 654092/2019 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 2 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 08/07/2019 AS AND FOR HARBOR'S FIFTH AFFIRMATIVE DEFENSE 10. The Complaint contains one or more causes of action which are barred by the doctrine of waiver. AS AND FOR HARBOR'S SIXTH AFFIRMATIVE DEFENS_E 11. This Court lacks personal jurisdiction over the Defeñdants. AS AND FOR HARBOR'S SEVENTH AFFIRMATIVE DEFENSE 12. The Complaint contains one or more causes of action that are barred by the applicable statute of limitations. AS AND FOR HARBOR'S EIGHTH AFFIRMATIVE DEFENSE 13. Granting the Plaintiffs demand in the Complaint would result in Unjust Enrichment. WHEREFORE, Harbor hereby damands judgment dismissing Plaintiff's declaratory judgm=t action in its entirety, and further demand statutory attorney's fees pursuant to 11 N.Y.C.R.R. 65-4.6(e), together with costs, disbursements and expenses of this action, and for any and all further relief which the Court deems just and proper. Dated: Lake Success, New York August 7, 2019 Yours, etc. Anthony J. DiChiara, Esq. ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP 3 Dakota Drive, Suite 300 Lake Success, NY 11042 Attorneys for Defendant 3 3 of 6 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 08/07/2019 02:15 02 : 50 PM PM| INDEX INDEX NO. NO. 654092/2019 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 2 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 08/07/2019 TO: Burke, Conway & Steifeld 10 Bank Street, Suite 1200 White Plains, New York 10606 Attorneys for Plaintiff 4 4 of 6 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 08 /07 /2019 02:15 02 : 50 PM PM| INDEX INDEX NO. NO. 654092/2019 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 2 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 08/07/2019 AFFIRMATION OF SERVICE STATE OF NEW YORK) )ss.: COUNTY OF NASSAU) Anthony DiChiara, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, under the penalty of perjury, affirms the following: On August 7, 2019, I served the following: DEFENDANTS' ANSWER The undersigned mailed the same on the date listed below to the address listed below. In addition, the undersigned uploaded the same on the date listed below to the New York State Court Electronic Filing portal: Addressee(s): Burke, Conway & Steifeld 10 Bank Street, Suite 1200 White Plains, New York 10606 Attorneys for Plaintiff 7th Date of Mailing: DAY OF AUGUST 2019 Anthony DiChiara Esq. Date: August 7, 2019 5 5 of 6 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 08/07/2019 02:15 02 : 50 PM PM| INDEX INDEX NO. NO. 654092/2019 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 2 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 08/07/2019 Index No: 654092 Year: 2019 CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiff, -against- KENDON THOMAS, ("Individual Defendant") AND AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICE, NORTH SHORE HOME CARE SERVICES, INC., AVA COSTUM SUPPLY, INC., OPUS PSYCHOLOGICAL SERVICES, P.C., SI ACUPUNCTURE, P.C., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL 1, PLLC, MAURO CHIROPRACTIC, P.C., HARBOR MEDICAL GROUP, P.C., ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP. ("Medical Provider Defendants") Defendants. DEFENDANTS' ANSWER ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN FORMATO, FERRARA, WOLF AND CARONE, LLP Defendants' Attorneys for To: Signature Attorney(s) for Plaintiff ANTHON DICHIARA, ESQ 6 6 of 6 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 10 / 2 5 / 2 019 02:15 05 : 3 6 PM PM INDEX NO. 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 4 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 10/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LIBERTY MUTUAL INSURANCE COMPANY, ET AL., INDEXNo. 654092/19 Plaintiffs, ANSWER WITH COUNTER-CLAIM -against- KENDON THOMAS, ET AL., File No. 37,475 Defendant. .____.................______._______________________......._______________. Defendant, AK GLOBAL SUPPLY CORP,, by itsattomeys, KOPELEVICH & FELDSHEROVA, PC, (hereinafter "Answering Daha=+"), as and for its answer respectfully alleges upon information and belief as follows: 1 Denies any knowledge and information sufficient to form a belief as to each and every allegation contained in the paragraph of the complaint therein designated as 1-20, 22, 25, 28-38, 41-44, 46-48, 50-51, 53-55, and 57-59 and refers allquestions of law to this Honorable Court. 2 Denies any knowledge and information sufficient to form a belief as to each and every allegation contained in the paragraph of the complaint therein designated as 26 EXCEPT admit that Answering Defendant submitted bills to Plaintiff for No-Fault reimbursement as assignee of KENDON THOMAS. 3 Denies any knowledge and information sufficient to form a belief as to each and every allegatiõn contained in the paragraph of the complaint therein designated as 27 EXCEPT admit that Answering Defeñdent submitted bills to Plaintiff for No-Fault reimbursement as assignee of KENDON THOMAS. 4 Denies any kñGwicdge and information sufficient to form a belief as to each and every allegation contained in the paragraph of the complaint therein designated as 39 EXCEPT admit that Answering Defendant submitted bills to Plaintiff for No-Fault reimbursement as assignee of KENDON THOMAS. 5 To the extent that Plaintiff repeats, reiterates and realleges prior allegations of the complaint as set forth in paragraphs 40, 45, 49, 52 and 56, Answering Defendant repeats, reiterates and reallges each and every admission, denial and allegation set forth above with the same force and effect as if stated here in full. AS FOR THE FIRST, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff's complaint fails to state a proper and valid cause of action in each and every cause of action upon which reliefmay be granted, and is thus fatally defective. 1 of 9 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 10 02:15 PM INDEX NO. 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 4 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 10/25/2019 AS FOR THE SECOND, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE. Venue is improper. AS FOR THE THIRD, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Forum non conveniens. AS FOR THE FOURTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff has failed to properly commence the instant action. AS FOR THE FIFTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Statutes of limitations have expired on the Plaintiff's action. AS FOR THE SIXTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff lacks legal capacity to sue. AS FOR THE SEVENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff lacks stãñdiñg to bring this cause of action against the Answering Defendant because the Answering Defendant owes no duty to Plaintiff. AS FOR THE EIGHTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff is barred from disclaiming liability under the doctrine of laches and equitable estoppel. AS FOR THE NINTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: There are other actions pending for the same causes of action, therefore, this case is barred. AS FOR THE TENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Necessary parties have not been included as parties to this action, AS FOR THE ELEVENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: The alleged causes of action are barred by any prior payment, release or settlement. AS FOR THE TWELFTH, SEPARATE, AND DISTINCT 2 of 9 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 10 02:15 PM INDEX NO. 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 4 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 10/25/2019 AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff will be unjustly enriched. AS FOR THE THIRTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: The Answering Defendant did not deceive or cause others to deceive the Plaintiff. AS FOR THE FOURTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE Plaintiff's damages if any are the result of its own fraudulent practices. AS FOR THE FIFTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: That in the event any judgment or verdict is rendered in favor of Plaintiff, the Answering Defendant is entitled to have such judgment or verdict reduced by the amounts of any collateral payments. AS FOR THE SIXTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Upon information and belief Plaintiff is barred from making this claim because of the failure of Plaintiff to comply with all the insurance laws, rules and regulations. AS FOR THE SEVENTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff failed to issue timely denials of Defendant's claims. Answering AS FOR THE EIGHTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: All bills as submitted to Plaintiff by the Añswering Defendant were not fraudulent. AS FOR THE NINETEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: The Answering Defendant did not breach the provisions of the insurance policy issued by Plaintiff. AS FOR THE TWENTIETH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: The Answering Defeñdañt is properly incorporated and operates pursuant to the applicable laws and regulations of the State of New York. AS AND FOR THE TWENTY-FIRST, SEPARATE, AND DISTINCT AFFIRMATIVE DEFENSE: 3 of 9 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 10/25/2019 02:15 0$: 3 6 PM PM ™ INDEX NO. 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 4 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 10/25/2019 The Plaintiff failed to provide proper notice of the EUOs to all parties as required the No- necessary by Fault Regulations. AS FOR THE TWENTY-SECOND, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: The Plaintiff failed to issue timely and proper requests for EUOs pursuant to the No-Fault Regulations. AS FOR THE TWENTY-THIRD SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff failed to timely schedule EUOs. AS FOR THE TWENTY-FOURTH SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff's EUO notices were insufficient. AS FOR THE TWENTY-FIFTH SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff failed to timely and properly deny Answering Defendant's claims on the grounds of KENDON THOMAS' failure to appear for EUOs. AS FOR THE TWENTY-SIXTH SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: KENDON THOMAS appeared for EUOs. AS FOR THE TWENTY-SEVENTH SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff lacks reasonable basis for requesting EUOs of KENDON THOMAS. AS FOR THE TWENTY-EIGHTH SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: All services provided by Answering Defendant were causally related to an insured incident. AS FOR THE TWENTY-NINTH SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Any denials issued by Plaintiff failed to preserve relevant defenses to coverage. AS FOR THE THIRTIETH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff failed to timely and properly deny Answering Defendant's claims. AS FOR THE THIRTY-FIRST, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: 4 of 9 FILED:: [FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 02:15 PM . In INDEX TO NO.m09W 654092/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 16 4 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 10/25/2019 Improper Service. AS FOR THE THIRTY-SECOND, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE Lack of personal jurisdiction. AS FOR THE THIRTY-THIRD, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Res judicata AS FOR THE THIRTY-FOURTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Collateral Estoppel AS AND FOR A FIRST COUNTER-CLAIM Defendant-Plaintiff, Answering Defendant on the Counter-Claim alleges: 1. Plaintiffs-Defeñdâñts on the counter-claim, LIBERTY MUTUAL INSURANCE COMPANY, ET AL., (hereinafter, "INSURER") issued insurance policies to its insured, (hereinafter, "POLICYHOLDER"), requiring INSURER to defeñd or/and indemnify the POLICYHOLDER and other eligible injured parties under the policy in any lawsuit involving said insurance contract including in the action brought by INSURER. 2. On or about June 17, 2019, INSURER commenced the instant declaratory judgment action in Supreme Court of the State of New York, COUNTY OF NEW YORK, against Answering Defendant, seeWg a declaration that Answering Defendant is not entitled to reimbursement for medical services billed to INSURER. The action of the 1NSURER is premised upon the allegation that Answering Defendant failed to attend Ex-±±-ns Under Oath and as such breached condition precedent to coverage. 3. Due to the instant action, the Answering Defendant has been damaged and compelled to employ an attorney for representation regarding the instant matter. As a result of this action, the Answering Defendant has already incurred, and will continue to incur, attorney's fees and other expenses with 5 of 9 :- INDEX ¹ NO. 654092/2019 FILED: FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 10/2-572019 02:15 05: 36 PM PM NYSCEF NYSCEF DOC. DOC. NO. NO. 16 4 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/14/2020 10/25/2019 regard to its defense in the instant action. As such, the Answering Defendant has been and will continue to be daiñãged in the sum that shall be determined at the trialor on inquest of this matter. 4. In the event that Answering Defendant prevails in the instant action, Answering Defendant demands attorney's fees against INSURER pursuant to the insurance contract, pursuant to the Court of Appeals decision in US Underwriters Ins. Co. v. City Club Hotel, LLC, et al., 3 NY3d 593, 822 NE2d 777 (2004), and pursuant to the amended attorney's fees provisions within the No-Fault regulations. Said amendments are effective for suits filed on or after February 4, 2015 and allow for attorney's to recover hourly fees for court proceedings which involve a policy issue, 11 NYCRR 65-4.6(c). *** 6 of 9 FILED:: ffLED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/14/2020 10 / 2 5 / -2 019 02:15 0 : 3 6 PM PM thx