On March 26, 2018 a
Exhibit,Appendix
was filed
involving a dispute between
Liberty Mutual Insurance Company,
Lm General Insurance Company,
and
Advanced Recovery Equipment And Supplies Llc,
Anesthesia Solutilons P.C.,
Barry Dublin Md,
Mlj Chiropractic P.C.,
Moshe Zirkiev,
Orthocaretech Inc.,
Protechmed Inc.,
Quality Orthopedics And Complete Joint Care P.C.,
Quest Diagnostics Incorporated,
Right Hand Medical Assist L.L.C.,
Robert Malakov, Physician, P.C.,
Roxbury Anesthesia, Llc,
Southwest Nassau Radiology, P.C.,
Stillwell Chiropractic P.C.,
Surgicore Of New Jersey City, Llc,
Valuecare Pharmacy Inc.,
Virginia Ferrigno, Lmt.,
for Commercial - Insurance
in the District Court of New York County.
Preview
FILED:
FILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 08/09/2018
08/05/2018 04:30
11:48 PM INDEX
INDEX NO.
NO. 652678/2018
652678/2018
PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 14
5 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 08/09/2018
08/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------x
LIBERTY MUTUAL INSURANCE COMPANY
and LM GENERAL INSURANCE COMPANY,
Plaintiffs
-against -
MOSHE ZIRKIEV RESPONSE TO DEMAND TO
Defendant,"
"Individual CHANGE VENUE
-and- Index No.: 652678/2018
ADVANCED RECOVERY EQUIPMENT AND
SUPPLIES LLC,
ANESTHESIA SOLUTIONS P.C.,
BARRY DUBLIN MD,
MLJ CHIROPRACTIC P.C.,
ORTHOCARETECH INC.,
PROTECHMED INC,
QUALITY ORTHOPEDICS AND COMPLETE
JOINT CARE P.C.,
QUEST DIAGNOSTICS INCORPORATED,
RIGHT HAND MEDICAL ASSIST L.L.C.,
ROBERT MALAKOV, PHYSICIAN, P.C.,
ROXBURY ANESTHESIA, LLC,
SOUTHWEST NASSAU RADIOLOGY, P.C.,
STILLWELL CHIROPRACTIC P.C.,
SURGICORE OF NEW JERSEY CITY, LLC.,
VALUECARE PHARMACY INC.,
VIRGINIA FERRIGNO, LMT,
Defendants"
"Medical Provider
collectively, the Defendants.
--------------------------------------------------------------------x
Plaintiffs, LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL
INSURANCE COMPANY, through their attorneys BURKE, GORDON & CONWAY, upon
information and belief, respond to defendant's demand to change venue, as follows:
1. Venue is proper in New York County based upon the location of an office of the
Plaintiff located in New York County, as indicated in paragraph 3 of the Verified Complaint.
1 of 3
FILED:
FILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 08/09/2018
08/05/2018 04:30
11:48 PM INDEX
INDEX NO.
NO. 652678/2018
652678/2018
PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 14
5 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 08/09/2018
08/05/2018
2. A foreign insurance company doing business in New York is exempt from designating
a principal office in New York within its filings with the secretary of state. State Farm Ins. Co. v.
(2nd
Brother Transp.,. Inc., 2007 NY Slip Op 50568U, 15 Misc. 3d 1110A; 839 N.Y.S.2d 437 Dept.,
2007). Liberty Mutual Insurance Company is a foreign insurance company. As a result, case-law
advocates that a foreign insurance company that has offices throughout a state may bring an action in
any county where itmaintains any office. See State Farm, 2007 NY Slip Op 50568U (citing
Manufacturers'
Pennsylvania Association Insurance Co. v. Liberty Mutual Insurance Co., 11 Misc 3d
1086A, (Sup.Ct., West. Co. 2006); General Acc. Fire 4 Life Assur. Corp. . v.Allcity Insurance Co.,
53 Misc 2d 596, 279 N.Y.S.2d 422 (Sup.Ct.Nass.Co. 1967)). Inasmuch as Liberty Mutual has an
office within New York County, and also transacts business in New York County through the selling
of insurance policies to residents of New York County, venue is proper in New York County.
3. Plaintiffs maintain several office locations in New York County including an office at
One Battery Park Plaza, 30th Floor New York, NY 10004 as indicated in paragraph 3 of the
Complaint served with the Summons.
4. There is no indication in the Demand to Change Venue dated that any material
witnesses, be itparties or non-parties, are inconvenienced by venue being in New York County
instead of Queens County. There does not appear to be any inconvenience for such witnesses in any
event no matter who the witnesses may be. Just because a defendant resides in Queens County and
the automobile accident (which is not an issue in this case - the issue is the failure to abide a
by
condition precedent to coverage) happened there does not mean that this action should be brought or
changed to Queens County.
WHEREFORE, plaintiffs respectfully request that defendant's request to change venue be
denied.
2 of 3
FILED:
F ILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 08/09/2018
08/05/2018 04:30
11:4 8 PM INDEX
I N DE X NO.
NO . 652678/2018
6 52678/2018
PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 14
5 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 08/09/2018
08/05/2018
White Plains, New York
August 5, 2018.
Yours etc.,
Philip J. Dillon, Esq.
Law Office Of
BURKE, GORDON & CONWAY
Attorneys for Plaintiffs
LIBERTY MUTUAL INSURANCE
COMPANY etal
10 Bank Street - Suite 1200
White Plains, NY 10606
(914) 997-8100
TO
Gitelis Law Firm, PC
Attorneys for Defendants
ROBERT MALAKOV, PHYSICIAN, P.C.
MLJ CHIROPRACTIC P.C.,
2004 Coney Island Avenue
2nd
FlOOr
Brooklyn, NY 11223
718 871 5070
3 of 3
Preview
FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 08/09/2018 08/05/2018 04:30 11:48 PM INDEX INDEX NO. NO. 652678/2018 652678/2018 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 14 5 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/09/2018 08/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiffs -against - MOSHE ZIRKIEV RESPONSE TO DEMAND TO Defendant," "Individual CHANGE VENUE -and- Index No.: 652678/2018 ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC, ANESTHESIA SOLUTIONS P.C., BARRY DUBLIN MD, MLJ CHIROPRACTIC P.C., ORTHOCARETECH INC., PROTECHMED INC, QUALITY ORTHOPEDICS AND COMPLETE JOINT CARE P.C., QUEST DIAGNOSTICS INCORPORATED, RIGHT HAND MEDICAL ASSIST L.L.C., ROBERT MALAKOV, PHYSICIAN, P.C., ROXBURY ANESTHESIA, LLC, SOUTHWEST NASSAU RADIOLOGY, P.C., STILLWELL CHIROPRACTIC P.C., SURGICORE OF NEW JERSEY CITY, LLC., VALUECARE PHARMACY INC., VIRGINIA FERRIGNO, LMT, Defendants" "Medical Provider collectively, the Defendants. --------------------------------------------------------------------x Plaintiffs, LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, through their attorneys BURKE, GORDON & CONWAY, upon information and belief, respond to defendant's demand to change venue, as follows: 1. Venue is proper in New York County based upon the location of an office of the Plaintiff located in New York County, as indicated in paragraph 3 of the Verified Complaint. 1 of 3 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 08/09/2018 08/05/2018 04:30 11:48 PM INDEX INDEX NO. NO. 652678/2018 652678/2018 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 14 5 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/09/2018 08/05/2018 2. A foreign insurance company doing business in New York is exempt from designating a principal office in New York within its filings with the secretary of state. State Farm Ins. Co. v. (2nd Brother Transp.,. Inc., 2007 NY Slip Op 50568U, 15 Misc. 3d 1110A; 839 N.Y.S.2d 437 Dept., 2007). Liberty Mutual Insurance Company is a foreign insurance company. As a result, case-law advocates that a foreign insurance company that has offices throughout a state may bring an action in any county where itmaintains any office. See State Farm, 2007 NY Slip Op 50568U (citing Manufacturers' Pennsylvania Association Insurance Co. v. Liberty Mutual Insurance Co., 11 Misc 3d 1086A, (Sup.Ct., West. Co. 2006); General Acc. Fire 4 Life Assur. Corp. . v.Allcity Insurance Co., 53 Misc 2d 596, 279 N.Y.S.2d 422 (Sup.Ct.Nass.Co. 1967)). Inasmuch as Liberty Mutual has an office within New York County, and also transacts business in New York County through the selling of insurance policies to residents of New York County, venue is proper in New York County. 3. Plaintiffs maintain several office locations in New York County including an office at One Battery Park Plaza, 30th Floor New York, NY 10004 as indicated in paragraph 3 of the Complaint served with the Summons. 4. There is no indication in the Demand to Change Venue dated that any material witnesses, be itparties or non-parties, are inconvenienced by venue being in New York County instead of Queens County. There does not appear to be any inconvenience for such witnesses in any event no matter who the witnesses may be. Just because a defendant resides in Queens County and the automobile accident (which is not an issue in this case - the issue is the failure to abide a by condition precedent to coverage) happened there does not mean that this action should be brought or changed to Queens County. WHEREFORE, plaintiffs respectfully request that defendant's request to change venue be denied. 2 of 3 FILED: F ILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 08/09/2018 08/05/2018 04:30 11:4 8 PM INDEX I N DE X NO. NO . 652678/2018 6 52678/2018 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 14 5 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/09/2018 08/05/2018 White Plains, New York August 5, 2018. Yours etc., Philip J. Dillon, Esq. Law Office Of BURKE, GORDON & CONWAY Attorneys for Plaintiffs LIBERTY MUTUAL INSURANCE COMPANY etal 10 Bank Street - Suite 1200 White Plains, NY 10606 (914) 997-8100 TO Gitelis Law Firm, PC Attorneys for Defendants ROBERT MALAKOV, PHYSICIAN, P.C. MLJ CHIROPRACTIC P.C., 2004 Coney Island Avenue 2nd FlOOr Brooklyn, NY 11223 718 871 5070 3 of 3