Preview
FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
Exhibit B
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FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
12
FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No.: 654092/2019
xxx
LIBERTY MUTUAL INSURANCE COMPANY,
LM GENERAL INSURANCE COMPANY
VERIFIED ANSWER
PLAINTIFF(S),
-AGAINST-
KENDON THOMAS, AMRO CARE PT, P.C.,
LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES,
NORTH SHORE HOME CARE SERVICES, INC., AVA
CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL
SERVICES P.C., SI ACUPUNCTURE, PC, METRO
PAIN SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC,
MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP
PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP.
DEFENDANT(S).
xxx
Defendant(s) AVA CUSTOM SUPPLY INC by itsattorneys, THE LAW OFFICE OF GABRIEL &
SHAPIRO LLC, as and for its answer respectfully alleges upon information and belief as follows:
1. Denies any knowledge or information sufficient to form a belief as to each and every allegation
contained in the preceding paragraph(s) of the complaint therein designated as 1-11, 13-39
2. Denied to paragraphs to each and every allegation contained in the preceding paragraph(s) of
the complaint therein designated as 12.
CONTAINED "FOR A CAUSE OF ACTION"
ANSWERING ALLEGATIONS IN FIRST
3. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to
form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in
the preceding paragraph of the complaint therein designated as 40.
FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
4. Denies any knowledge or information sufficient to form a belief as to each and every allegation
contained in the preceding paragraph(s) of the complaint therein designated as 41-44
ACTION"
ANSWERING ALLEGATIONS CONTAINED IN "FOR A SECOND CAUSE OF
5. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to
form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in
the preceding paragraph of the complaint therein designated as 45.
6. Denies any knowledge or information sufficient to form a belief as to each and every allegation
contained in the preceding paragraph(s) of the complaint therein designated as 46-48
OF ACTION"
ANSWERING ALLEGATIONS CONTAINED IN "FOR A THIRD CAUSE
7. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to
form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in
the preceding paragraph of the complaint therein designated as 49.
8. Denies any knowledge or information sufficient to form a belief as to each and every allegation
contained in the preceding paragraph(s) of the complaint therein designated as 50-51
FORTH CAUSE OF ACTION"
ANSWERING ALLEGATIONS CONTAINED IN "FOR A
9. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to
form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in
the preceding paragraph of the complaint therein designated as 52.
10. Denies any knowledge or information sufficient to form a belief as to each and every allegation
contained in the preceding paragraph(s) of the complaint therein designated as 53-55
ACTION"
ANSWERING ALLEGATIONS CONTAINED IN "FOR A FIFTH CAUSE OF
11. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to
form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiffin
the preceding paragraph of the complaint therein designated as 56.
12. Denies any knowledge or information sufficient to form a belief as to each and every allegation
contained in the preceding paragraph(s) of the complaint therein designated as 57-58
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NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
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 relief may be granted, and is thus fatally defective.
AS FOR THE SECOND, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff lacks standing to bring this cause of action against the answering Defendants because the
answering Defendants owe no duty to Plaintiff.
AS FOR THE THIRD, 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 FOURTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
The alleged causes of action are barred by any prior release or settlement.
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:
Plaintiffs are barred from disclaiming liability under the doctrine of latches and equitable estoppel.
AS FOR THE SEVENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
That in the event any judgment or verdict is rendered in favor of Plaintiff, the answering Defendants
are entitled to have such judgment or verdict reduced by the amounts of any collateral payments.
AS FOR THE EIGHTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff has failed to properly commence the instant action.
AS FOR THE NINTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
All bills as submitted to Plaintiff by the answering Defendants were not fraudulent.
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FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
AS FOR THE TENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff lacks legal capacity to sue.
AS FOR THE ELEVENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Necessary parties have not been included as parties to this action.
AS FOR THE TWELFTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
Plaintiff will be unjustly enriched.
AS FOR THE THIRTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
All answering Defendants did not receive or cause 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:
There are other actions pending for the same causes of action; therefore, this case is barred.
AS FOR THE S1XTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
All answering Defendants did not breach the provisions of the insurance policy issued by Plaintiff.
AS FOR THE SEVENTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
All answering Defendants are properly incorporated and operate pursuant to the applicable laws and
regulations of the State of New York.
AS FOR THE EIGHTEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
All services provided to the claimants were performed by the employees of Defendants.
AS FOR THE NINETEENTH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
The Court does not have personal jurisdiction over the answering defendants due to improper and/or
defective service of process on the part of the plaintiff.
AS FOR THE TWENTIETH, SEPARATE, AND DISTINCT
AND COMPLETE AFFIRMATIVE DEFENSE:
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FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
This action is barred due to collateral estoppel and/or res judicata.
AS AND FOR THE TWENTIFIRST AFFIRMATIVE DEFENSE
Any alleged misrepresentations made by the assignor were unintentional and/or do not rise to
the level of material misrepresentation.
AS AND FOR THE TWENTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff failed to plead how the Defendant would not have issued the policy if they would have
known of the alleged misrepresentations
WHEREFORE, itis respectfully requested that a judgment be granted (1) dismissing the complaint
herein as against the answering Defendant(s) AVA CUSTOM SUPPLY INC, with costs and reimbursements
of this action; or, in the alternative, (2) to the answering Defendant(s) AVA CUSTOM SUPPLY INC in the
amount of the sum of the claims submitted to the Plaintiff by the answering Defendant (3) together with the
costs and disbursements; and (4) such other and further relief that this Court deems just and proper.
Dated: Rockville Centre, NY
Sept. 17, 2020
OSEPH J. PAD UCCO ESQ
Law Offices of abriel &
apiro, L.L. .
Attorneys fo efendant
AVA CUS SUPPLY INC.
2 Lincoln enue, Suite 302
Rockville Centre, NY 11570
Tel: (516) 388-7040
5
FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
6
FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK Index No.: 654092/2019
××x
LIBERTY MUTUAL INSURANCE COMPANY,
LM GENERAL INSURANCE COMPANY
VERIFICATION
PLAINTIFF(S),
-AGAINST-
KENDON THOMAS, AMRO CARE PT, P.C.,
LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES,
NORTH SHORE HOME CARE SERVICES, INC., AVA
CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL
SERVICES P.C., SI ACUPUNCTURE, PC, METRO
PAIN SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC,
MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP
PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP.
DEFENDANT(S).
xxx
The undersigned, an attorney duly admitted to practice law in the Courts of the State of
New York, affirms as follows under penalty of perjury:
Affirmant is associated with the law firm of Gabriel & Shapiro LLC the attorney of
record for the Defendants AVA CUSTOM SUPPLY INC.,. Affirmant has read the annexed
Answer and knows the contents thereof. The contents are true to the best of affirmant's
knowledge, except as to those matters therein stated to be alleged upon information and belief.
As to those matters, affirmant believes them to be true. The source of affirmant's knowledge
an\d the grounds for belief, as to those matters therein not stated upon knowledge, are bills,
reports, conversations with Defendant's employees, routine nes ractices, etc.
Dated: Rockville Centre, NY
Sept. 17, 2020
H J. ADRUCCO ESQ
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FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
Law Offices of Gabriel &
Shapiro, L.L.C.
Attorneys for Defendant
AVA CUSTOM SUPPLY INC.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570
Tel: (516) 388-7040
8
FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020
SUPREME COURT OF THE STATE OF NEW YORK Index No. 654092/2019
COUNTY OF NEW YORK
XXX
LIBERTY MUTUAL 1NSURANCE COMPANY
and LM INSURANCE CORPORATION
Plaintiff,
-against-
KENDON THOMAS, AMRO CARE PT, P.C.,
LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES,
NORTH SHORE HOME CARE SERVICES, INC., AVA
CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL
SERVICES P.C., SI ACUPUNCTURE, PC, METRO
PAIN SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC,
MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP
PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP.
JOSEPH J. PADRUCCO ESQ
Law Offices of Gabriel &
Shapiro, L.L.C.
Attorneys for Defendant
AVA CUSTOM SUPPLY 1NC.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570
Tel·
(516) 388-7040
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the
courts of New York State, certifies that, upon information and helief and reasonable inquiry the
contentions contained in the annexed documents are not fi-ivolo .
Dated: Sept. 17, 2020
Signature: ..............................................
Print Signer's N e: JOSEPH ADRUCCO ER.
To: BURKE, CONWAY & DILLON
Attorneys forPlaintiffs
LIBERTY MUTUAL INSURANCE COMPANY,
and LM INSURANCE COMPANY
10 Bank Street, Suite 1200
White Plains, NY 10606
9
Preview
FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 Exhibit B 11 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 12 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 654092/2019 xxx LIBERTY MUTUAL INSURANCE COMPANY, LM GENERAL INSURANCE COMPANY VERIFIED ANSWER PLAINTIFF(S), -AGAINST- KENDON THOMAS, AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, NORTH SHORE HOME CARE SERVICES, INC., AVA CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL SERVICES P.C., SI ACUPUNCTURE, PC, METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC, MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP. DEFENDANT(S). xxx Defendant(s) AVA CUSTOM SUPPLY INC by itsattorneys, THE LAW OFFICE OF GABRIEL & SHAPIRO LLC, as and for its answer respectfully alleges upon information and belief as follows: 1. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraph(s) of the complaint therein designated as 1-11, 13-39 2. Denied to paragraphs to each and every allegation contained in the preceding paragraph(s) of the complaint therein designated as 12. CONTAINED "FOR A CAUSE OF ACTION" ANSWERING ALLEGATIONS IN FIRST 3. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in the preceding paragraph of the complaint therein designated as 40. FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 4. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraph(s) of the complaint therein designated as 41-44 ACTION" ANSWERING ALLEGATIONS CONTAINED IN "FOR A SECOND CAUSE OF 5. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in the preceding paragraph of the complaint therein designated as 45. 6. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraph(s) of the complaint therein designated as 46-48 OF ACTION" ANSWERING ALLEGATIONS CONTAINED IN "FOR A THIRD CAUSE 7. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in the preceding paragraph of the complaint therein designated as 49. 8. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraph(s) of the complaint therein designated as 50-51 FORTH CAUSE OF ACTION" ANSWERING ALLEGATIONS CONTAINED IN "FOR A 9. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiff in the preceding paragraph of the complaint therein designated as 52. 10. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraph(s) of the complaint therein designated as 53-55 ACTION" ANSWERING ALLEGATIONS CONTAINED IN "FOR A FIFTH CAUSE OF 11. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to form a belief as to each of the allegations of the complaint reiterated and realleged by Plaintiffin the preceding paragraph of the complaint therein designated as 56. 12. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraph(s) of the complaint therein designated as 57-58 2 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 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 relief may be granted, and is thus fatally defective. AS FOR THE SECOND, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff lacks standing to bring this cause of action against the answering Defendants because the answering Defendants owe no duty to Plaintiff. AS FOR THE THIRD, 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 FOURTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: The alleged causes of action are barred by any prior release or settlement. 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: Plaintiffs are barred from disclaiming liability under the doctrine of latches and equitable estoppel. AS FOR THE SEVENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: That in the event any judgment or verdict is rendered in favor of Plaintiff, the answering Defendants are entitled to have such judgment or verdict reduced by the amounts of any collateral payments. AS FOR THE EIGHTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff has failed to properly commence the instant action. AS FOR THE NINTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: All bills as submitted to Plaintiff by the answering Defendants were not fraudulent. 3 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 AS FOR THE TENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff lacks legal capacity to sue. AS FOR THE ELEVENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Necessary parties have not been included as parties to this action. AS FOR THE TWELFTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: Plaintiff will be unjustly enriched. AS FOR THE THIRTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: All answering Defendants did not receive or cause 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: There are other actions pending for the same causes of action; therefore, this case is barred. AS FOR THE S1XTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: All answering Defendants did not breach the provisions of the insurance policy issued by Plaintiff. AS FOR THE SEVENTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: All answering Defendants are properly incorporated and operate pursuant to the applicable laws and regulations of the State of New York. AS FOR THE EIGHTEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: All services provided to the claimants were performed by the employees of Defendants. AS FOR THE NINETEENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: The Court does not have personal jurisdiction over the answering defendants due to improper and/or defective service of process on the part of the plaintiff. AS FOR THE TWENTIETH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE: 4 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 This action is barred due to collateral estoppel and/or res judicata. AS AND FOR THE TWENTIFIRST AFFIRMATIVE DEFENSE Any alleged misrepresentations made by the assignor were unintentional and/or do not rise to the level of material misrepresentation. AS AND FOR THE TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiff failed to plead how the Defendant would not have issued the policy if they would have known of the alleged misrepresentations WHEREFORE, itis respectfully requested that a judgment be granted (1) dismissing the complaint herein as against the answering Defendant(s) AVA CUSTOM SUPPLY INC, with costs and reimbursements of this action; or, in the alternative, (2) to the answering Defendant(s) AVA CUSTOM SUPPLY INC in the amount of the sum of the claims submitted to the Plaintiff by the answering Defendant (3) together with the costs and disbursements; and (4) such other and further relief that this Court deems just and proper. Dated: Rockville Centre, NY Sept. 17, 2020 OSEPH J. PAD UCCO ESQ Law Offices of abriel & apiro, L.L. . Attorneys fo efendant AVA CUS SUPPLY INC. 2 Lincoln enue, Suite 302 Rockville Centre, NY 11570 Tel: (516) 388-7040 5 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 6 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 654092/2019 ××x LIBERTY MUTUAL INSURANCE COMPANY, LM GENERAL INSURANCE COMPANY VERIFICATION PLAINTIFF(S), -AGAINST- KENDON THOMAS, AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, NORTH SHORE HOME CARE SERVICES, INC., AVA CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL SERVICES P.C., SI ACUPUNCTURE, PC, METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC, MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP. DEFENDANT(S). xxx The undersigned, an attorney duly admitted to practice law in the Courts of the State of New York, affirms as follows under penalty of perjury: Affirmant is associated with the law firm of Gabriel & Shapiro LLC the attorney of record for the Defendants AVA CUSTOM SUPPLY INC.,. Affirmant has read the annexed Answer and knows the contents thereof. The contents are true to the best of affirmant's knowledge, except as to those matters therein stated to be alleged upon information and belief. As to those matters, affirmant believes them to be true. The source of affirmant's knowledge an\d the grounds for belief, as to those matters therein not stated upon knowledge, are bills, reports, conversations with Defendant's employees, routine nes ractices, etc. Dated: Rockville Centre, NY Sept. 17, 2020 H J. ADRUCCO ESQ 7 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 Law Offices of Gabriel & Shapiro, L.L.C. Attorneys for Defendant AVA CUSTOM SUPPLY INC. 2 Lincoln Avenue, Suite 302 Rockville Centre, NY 11570 Tel: (516) 388-7040 8 FILED: NEW YORK COUNTY CLERK 09/17/2020 06:24 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 09/17/2020 SUPREME COURT OF THE STATE OF NEW YORK Index No. 654092/2019 COUNTY OF NEW YORK XXX LIBERTY MUTUAL 1NSURANCE COMPANY and LM INSURANCE CORPORATION Plaintiff, -against- KENDON THOMAS, AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, NORTH SHORE HOME CARE SERVICES, INC., AVA CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL SERVICES P.C., SI ACUPUNCTURE, PC, METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I, PLLC, MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP. JOSEPH J. PADRUCCO ESQ Law Offices of Gabriel & Shapiro, L.L.C. Attorneys for Defendant AVA CUSTOM SUPPLY 1NC. 2 Lincoln Avenue, Suite 302 Rockville Centre, NY 11570 Tel· (516) 388-7040 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the courts of New York State, certifies that, upon information and helief and reasonable inquiry the contentions contained in the annexed documents are not fi-ivolo . Dated: Sept. 17, 2020 Signature: .............................................. Print Signer's N e: JOSEPH ADRUCCO ER. To: BURKE, CONWAY & DILLON Attorneys forPlaintiffs LIBERTY MUTUAL INSURANCE COMPANY, and LM INSURANCE COMPANY 10 Bank Street, Suite 1200 White Plains, NY 10606 9