Preview
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 11/17/2020
Exhibit A
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
RS/lae
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------x
LIBERTY MUTUAL INSURANCE COMPANY
and LM GENERAL INSURANCE COMPANY,
Plaintiffs
SUMMONS
Index No.:
-against –
MOSHE ZIRKIEV
“Individual Defendant,"
-and-
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,
"Medical Provider Defendants"
collectively, the Defendants.
--------------------------------------------------------------------x
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Complaint of the Plaintiffs, a copy
of which is hereby served upon you, and to serve copies of your answers upon the undersigned
1 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
within twenty (20) days after service upon you of the Summons and Complaint, exclusive of the
day of service (or within 30 days after the service is complete if this summons and complaint is
not personally delivered to you within the State of New York). In the event you fail to answer
the Plaintiffs’ Complaint, judgment will be taken against you by default for the relief demanded
in the Complaint.
Dated: White Plains, New York
May 21, 2018
Yours etc.,
_____________________________
Robert J. Spence III, Esq.
BURKE, CONWAY & DILLON
Attorneys for Plaintiffs
LIBERTY MUTUAL INSURANCE
COMPANY and LM GENERAL
INSURANCE COMPANY
10 Bank Street, Suite 1200
White Plains, NY 10606
914-997-8100
TO:
Advanced Recovery Equipment and Supplies LLC
c/o DAN HOROWITZ,
1501 Newkirk Ave.
Brooklyn New York 11226
Anesthesia Solutions P.C.
108-18 72nd Avenue
Forest Hills, New York 11375
Barry Dublin MD
199 Lee Avenue, Suite 192,
Brooklyn New York 11211
&
1736 Shore Pkwy.
2 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
Brooklyn, New York 11214
MLJ CHIROPRACTIC P.C.
98-51 Queens Blvd,
Rego Park, New York 11374
&
2270 Grand Ave,
Baldwin, NY 11510
&
98-120 Queens Blvd.
Rego Park New York 11374
Orthocaretech Inc.
9740 62 Drive 4C
Rego Park, New York 11374
Protechmed Inc
7064 Kissena Blvd, 3Fl.
Flushing, New York 11367
Quality Orthopedics And Complete Joint Care P.C.
144-32 68 Ave.
Flushing, New York 11367
& 9814a Metropolitan Ave.
Forest Hills, New York 11375
&
550 Newark Ave.
Jersey City, New Jersey 07306
Quest Diagnostics Incorporated
C/o Corporation Service Company
80 State Street Albany, New York 12207
&
1 Malcolm Ave.
Teterboro, New Jersey 07608
&
PO Box 663
Norwood MA 02062
Right Hand Medical Assist L.L.C.
142-07 174th Street
Jamaica, New York 11434
&
151 West Passaic Street 2nd Fl
Rochelle Park, New Jersey 07662
3 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
&
550 Newark Ave,
Jersey City, New Jersey 07306
Robert Malakov, Physician, P.C.
98-120 Queens Blvd. Suite 1LM
Rego Park, New York, 11374
Roxbury Anesthesia, LLC
550 Newark Ave. 5th Floor
Jersey City, New Jersey 07306-0550
&
PO Box 49
Pittsburgh, PA 15230-0049
Southwest Nassau Radiology, P.C.
C/o Friedman, Harfenist Kraut & Perlstein LLP
3000 Marcus Ave. #2E1,
Lake Success, New York 11042
&
147 E. Merrick Road
Valley Stream New York 11580
Stillwell Chiropractic P.C.
1736 Shore Parkway
Brooklyn, New York 11214
Surgicore of New Jersey City, LLC.
550 Newark Ave Fl 5
Jersey City, New Jersey 07306-1326
Valuecare Pharmacy Inc.
8269 Parsons Blvd.
Jamaica, New York 11432
Virginia Ferrigno, LMT
103 Mosel Avenue
Staten Island, New York 10304
4 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
RS/lae
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------x
LIBERTY MUTUAL INSURANCE COMPANY
and LM GENERAL INSURANCE COMPANY,
Plaintiffs
-against -
VERIFIED COMPLAINT
MOSHE ZIRKIEV,
"Individual Defendant" Index No.:
-and-
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,
"Medical Provider Defendants"
collectively, the Defendants.
--------------------------------------------------------------------x
Plaintiffs, LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL
INSURANCE COMPANY (hereinafter “Plaintiffs” or “Liberty Mutual”) by and through its
attorneys, Law Office of Burke, Conway & Dillon as set forth in its Verified Complaint in this
action, hereby allege, upon information and belief, as follows:
5 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
Introduction
This is an action for a declaratory judgment pursuant to CPLR § 3017(b) defining and
declaring the rights, duties, obligations and legal relationships by and between the Plaintiffs and
the above-named Defendant.
1. This action stems from claims by the Medical Provider Defendants seeking
reimbursement for bills submitted to the Plaintiffs for reimbursement under New York’s No-
Fault laws. This action seeks a Preliminary Injunction barring the Defendants from seeking any
No-Fault reimbursement in connection with all claims brought out of the alleged motor vehicle
accident involving the Individual Defendant as detailed hereinafter; a Stay of all pending
litigation and/or arbitrations now brought by the Medical Provider Defendants involving this
claim that exist in the Civil Courts of the City of New York or elsewhere; a prohibition of the
Defendants from further submitting bills to Plaintiffs for No-Fault reimbursement connected
with this claim, and an overall Declaration from the Court affirming that the denials of all claims
for No-Fault benefits by the Plaintiffs were proper.
Jurisdiction And Venue
2. This court has personal jurisdiction over this matter under CPLR §§301, 302(a)(1),
and 302(a)(3).
3. Venue is proper in based on Plaintiffs transacting business in New York County by
virtue of selling policies of automobile insurance to residents of New York County. Moreover,
Plaintiffs maintain several office locations in New York County including an office at One
Battery Park Plaza, 30th Floor New York, NY 10004.
Parties
Plaintiffs
4. Collectively, the Plaintiffs are insurance companies under the Liberty Mutual
umbrella that are authorized to write insurance policies in New York State.
5. Plaintiff, LM General Insurance Company is a Liberty Mutual Company, a
Massachusetts corporation with a principal place of business at 175 Berkeley Street, Boston,
Massachusetts 02116.
6. Liberty Mutual is authorized to write insurance policies in New York State and
Liberty Mutual transacts business in all counties of the State of New York.
6 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
7. Plaintiffs wrote an insurance policy issued to Louba Zirkiev and Khibor Zirkiev.
Defendants
Individual Defendant
8. Upon information and belief, Defendant Moshe Zirkiev (hereinafter, “Zirkiev) is an
individual residing in the State of New York at 6730 166th St, Fresh Meadows, NY 11365.
Medical Provider Defendants
9. Upon information and belief, Defendant ADVANCED RECOVERY EQUIPMENT
and SUPPLIES LLC, is a domestic limited liability company which is transacting or has
transacted business in the State of New York with an address of 1501 Newkirk Ave., Brooklyn,
New York 11226.
10. Upon information and belief, Defendant ANESTHESIA SOLUTIONS P.C., is a
domestic professional corporation which is transacting or has transacted business in the State of
New York with an address of 108-18 72nd Avenue, Forest Hills, New York 11375.
11. Upon information and belief, Defendant BARRY DUBLIN MD, is a physician who is
transacting or has transacted business in the State of New York with an address of 199 Lee
Avenue, Suite 192, Brooklyn New York 11211 and 1736 Shore Pkwy, Brooklyn, New York
11214.
12. Upon information and belief, Defendant MLJ CHIROPRACTIC P.C., is a domestic
professional corporation which is transacting or has transacted business in the State of New York
with an address of 98-51 Queens Blvd, Rego Park, NY 11374 and 2270 Grand Ave, Baldwin,
NY 11510 and 98-120 Queens Blvd., Rego Park New York 11374.
13. Upon information and belief, Defendant ORTHOCARETECH INC. is a domestic
business corporation, which is transacting or has transacted business in the State of New York
with an address of . 9740 62 Drive 4C Rego Park, New York 11374.
14. Upon information and belief, Defendant PROTECHMED INC is a domestic business
corporation which is transacting or has transacted business in the State of New York with an
address of 7064 Kissena Blvd, 3Fl, Flushing, New York 11367.
15. Upon information and belief, Defendant QUALITY ORTHOPEDICS AND
COMPLETE JOINT CARE P.C., is a domestic professional corporation which is transacting or
has transacted business in the State of New York and the State of New Jersey with an address of
7 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
144-32 68 Ave., Flushing, New York 11367; 9814a Metropolitan Ave., Forest Hills, NY 11375
and 550 Newark Ave., Jersey City, New Jersey 07306.
16. Upon information and belief, Defendant QUEST DIAGNOSTICS
INCORPORATED, is a foreign business corporation which is transacting or has transacted
business in the State of New York with an address of 80 State Street Albany, NY 12207; and is
located at 1 Malcolm Ave. Teterboro, NJ 07608 and a mailing address of PO Box 663 Norwood
MA 02062 and evaluating patients treating at 98-120 Queens Blvd, Rego Park, NY 11374 and
seeking New York No-Fault benefits as a result of those evaluations.
17. Upon information and belief, Defendant RIGHT HAND MEDICAL ASSIST L.L.C.,
is a which is a medical ambulatory surgery center which is transacting or has transacted business
in the State of New York and the State of New Jersey with an address of 142-07 174th Street,
Jamaica, New York 11434; 151 West Passaic Street 2nd Fl Rochelle Park, New Jersey 07662
and 550 Newark Ave, Jersey City, NJ 07306.
18. Upon information and belief, Defendant ROBERT MALAKOV, PHYSICIAN, P.C.,
is a domestic professional corporation which is transacting or has transacted business in the State
of New York with an address of 98-120 Queens Blvd. Suite 1LM Rego Park, New York, 11374.
19. Upon information and belief, Defendant ROXBURY ANESTHESIA, LLC is
physicians anesthesiology service which is transacting or has transacted business in the State of
New Jersey with an address of 550 Newark Ave. 5th Floor, Jersey City, NJ 07306-0550 and a
mailing address of PO Box 49 Pittsburgh, PA 15230.
20. Upon information and belief, Defendant SOUTHWEST NASSAU RADIOLOGY,
P.C., is a domestic professional corporation which is transacting or has transacted business in
the State of New York with an address of 147 E. Merrick Road, Valley Stream NY 11580 and
3000 Marcus Ave. #2E1, Lake Success, NY 11042.
21. Upon information and belief, Defendant STILLWELL CHIROPRACTIC P.C., is a
domestic professional corporation which is transacting or has transacted business in the State of
New York with an address of 1736 Shore Parkway, Brooklyn, New York 11214.
22. Upon information and belief, Defendant SURGICORE OF NEW JERSEY CITY,
LLC is a medical facility that is transacting or has transacted business in the State of New Jersey
with an address of 550 Newark Ave Fl 5, Jersey City, NJ -07306 and evaluating patients treating
8 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
at 98-120 Queens Blvd, Rego Park, NY 11374 and seeking New York No-Fault benefits as a
result of those evaluations.
23. Upon information and belief, Defendant VALUECARE PHARMACY INC., is a
domestic business corporation that is transacting or has transacted business in the State of New
York with an address of 8269 Parsons Blvd., Jamaica, New York 11432.
24. Upon information and belief, Defendant VIRGINIA, FERRIGNO LMT, is a licensed
massage therapist that is transacting or has transacted business in the State of New York with an
address of 103 Mosel Avenue, Staten Island, NY 10304.
Factual Background
25. This action arises out of claims for no-fault reimbursement stemming from a motor
vehicle accident involving Individual Defendants, Moshe Zirkiev, on May 23, 2017 (hereinafter
referred to as “the occurrence” or “the accident”) wherein an alleged collision occurred between
a vehicle operated by Moshe Zirkiev and a vehicle operated by unknown, owned by Call A Head
Corp.
26. The policy (“the policy”) in question was issued to Louba Zirkiev and Khibor Zirkiev
under policy number AOS22815352640 effective 4/08/2017 through 4/08/2018 with limits of
no-fault medical bill coverage of $50,000 per person.
27. According to the police report, the accident occurred on May 23, 2017, at Queens
Boulevard and 68th St., Queens, NY. Moshe Zirkiev’s 2004 Lexus sedan was parked on Queens
Boulevard at 68th Street when a truck owned and registered to Call A Head Corp was traveling
westbound on Queens Blvd. and allegedly side swiped Zirkiev’s vehicle and fled the scene.
28. Following the accident, the Individual Defendant sought medical treatment for his
alleged injuries.
29. The Medical Provider Defendants then submitted bills on assignment from the
applicable Individual Defendant to the Plaintiffs seeking No-Fault reimbursement.
30. The following Medical Provider Defendants submitted bills for Moshe Zirkiev:
All Billing for Zirkiev:
ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC 1244.73
ANESTHESIA SOLUTIONS P.C. 148.69
BARRY DUBLIN MD 503.01
MLJ CHIROPRACTIC P.C. 939.18
9 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
ORTHOCARETECH INC. 2567.5
PROTECHMED INC 632.32
QUALITY ORTHOPEDICS AND COMPLETE JOINT CARE P.C. 12354.77
QUEST DIAGNOSTICS INCORPORATED $177.94
RIGHT HAND MEDICAL ASSIST L.L.C. $2,423.73
ROBERT MALAKOV, PHYSICIAN, P.C. $5,739.56
ROXBURY ANESTHESIA, LLC $2,100.00
SOUTHWEST NASSAU RADIOLOGY, P.C. $3,549.07
STILLWELL CHIROPRACTIC P.C. $54.73
SURGICORE OF NEW JERSEY CITY, LLC. $8,265.42
VALUECARE PHARMACY INC. $548.78
VIRGINIA FERRIGNO, LMT 80.68
Total Billing $41,330.11
31. The total medical billing under the claim to date is $41,330.11.
32. The No-Fault reimbursement laws of the State of New York call for the swift
payment of medical bills by the insurer of the vehicle involved in the motor vehicle accident but
permit the insurer to disallow payments for those not medically necessary, those medical bills for
treatment unrelated to the accident, or those for which there is no coverage. Further, it allows
providers to conduct reasonable investigation and require Examinations Under Oath (EUO) of
the parties to determine the legitimacy of the claims.
33. Upon receipt of the claim, an investigation was begun due to the loss facts and
concerns whether Zirkiev was actually in the vehicle at the time of the alleged loss. As part of
the investigation, Examinations Under Oath were scheduled for the Individual Defendant,
Zirkiev.
34. EUOs were scheduled for September 20, 2017 and on November 9, 2017. Letters
scheduling the EUOs were sent to the claimant and his attorney on August 7, 2017 and October
24, 2017. However, Zirkiev did not appear for any of the scheduled EUOs despite proper
notification.
35. Based on the Individual Defendant’s failure to attend his respective EUOs that were
scheduled for him, Plaintiffs timely denied all bills submitted by the Medical Provider
Defendants.
10 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
Statement of Facts
Applicable Law
36. Plaintiffs are entitled to defend any No-Fault claim, regardless of initial denial,
whenever there is a “lack of coverage defense premised on the fact or founded belief that the
alleged injury does not arise out of an insured incident.” Cen Gen Hosp. v. Chubb Ins., 90
N.Y.2d 195 (1997); Zappone v. Home Ins., 55 N.Y.2d 131 (1982); Albert Schiff Assoc. v. Flack,
51 N.Y.2d 692 (1980); Metro Med. v. Eagle Ins. Co., 293, A.D.2d 751 (2d Dep’t 2002).
37. Under the policy claimants are obligated to appear for Examinations Under Oath
(“EUO”) to substantiate their claim. This policy clause is in accordance with the applicable New
York law.
38. Each bill submitted by the Medical Provider Defendants for reimbursement to
Plaintiffs is also governed by New York State Regulation 68A, NYCRR § 65-1.1, Conditions,
Actions Against Company and Proof of Claim, which states that an insurer like the Plaintiffs
may require any insured making a claim under the policy to provide information regarding the
legitimacy of the claim in a reasonable manner and that
“No action shall lie against the Company unless, as a condition precedent thereto, there
shall have been full compliance with the terms of this coverage
…
Upon request by the Company, the eligible injured person or that person’s assignee or
representative shall:
(a) execute a written proof of claim under oath;
(b) as may reasonably be required submit to examinations under oath by any person
named by the Company and subscribe the same;
(c) provide authorization that will enable the Company to obtain medical records; and
(d) provide any other pertinent information that may assist the Company in determining
the amount due and payable.”
39. Coverage cannot be created after an occurrence. It must exist originally or it does not
exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 712 N.Y.S2d 433
(2000); CGU Ins v. Guadagno, 280 A.D.2d 509, 720 N.Y.S2d 201 (2d Dep’t 2001).
40. An assignee does not stand in a better position than his assignor. “He is subject to all
the equities and burdens which attach to the property assigned because he receives no more and
can do no more than his assignor.” Int’l Ribbon Mills, Ltd. v. Arjan Ribbons, Inc., 36 N.Y.2d
11 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
121, 365 N.Y.2d 808, 811 (1975); See also Abraham v. Hanover Ins. Co., 66 A.D.2d 808, 411
N.Y.S2d 355 (2d Dep’t 1978).
41. The Individual Defendant must complete the condition precedent to effect coverage.
Such is never more in play when a claimant fails to appear for a requested Independent Medical
Examination (“IME”) or as in this instance, the requested EUO. In Unitrin Advantage Ins. Co. v.
Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1st Dept, 2011), the
Appellate Division, First Department held;
“The failure to appear for IMEs requested by the insurer “when,
and as often as, [it] may reasonably require” (Insurance
Department Regulations [11 NYCRR] § 65–1.1) is a breach of a
condition precedent to coverage under the No–Fault policy, and
therefore fits squarely within the exception to the preclusion
doctrine, as set forth in Central Gen. Hosp. v. Chubb Group of Ins.
Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997].
Accordingly, when defendants' assignors failed to appear for the
requested IMEs, plaintiff had the right to deny all claims
retroactively to the date of loss, regardless of whether the denials
were timely issued ( see Insurance Department Regulations [11
NYCRR] § 65–3.8 [c]; Fogel, 35 A.D.3d at 721–22, 827 N.Y.S.2d
217).”
Unitrin Advantage, at 1
There is no doubt that the requirement for an appearance at the EUO also would have a
similar result as in Unitrin. In Crotona Heights Medical, P.C. v. Farm Family Cas. Ins. Co. 27
Misc.3d 134(A), 910 N.Y.S.2d 404 N.Y.Sup.App.Term, 2010, 2nd, 11th and 13th Judicial
Districts, the court held;
“The appearance of the eligible injured person's assignee at an
EUO upon a proper request is a condition precedent to the insurer's
liability on the policy ( see Insurance Department Regulations [11
NYCRR] § 65–1.1; Stephen Fogel Psychological, P.C., 35 AD3d
at 722; W & Z Acupuncture, P.C., 24 Misc.3d 142[A], 2009 N.Y.
Slip Op 51732[U] ).”
Crotona Heights Medical, P.C., at 134
42. Each and every one of the Medical Provider Defendants is an assignee of the
Individual Defendant.
12 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
As And For A First Cause of Action
43. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
in this Complaint with the same force and effect as if set forth fully herein.
44. Liberty Mutual is not obligated to pay any bills, whether submitted prior to or after
the requested Examinations under Oath.
45. Liberty Mutual was within its rights deny all claims retroactive to the date of loss.
46. Liberty Mutual is therefore entitled to a Permanent Injunction barring all the pending
litigation and arbitrations between the parties from proceeding based on the proper denials it has
issued.
47. Liberty Mutual has no other adequate remedy at law.
As And For A Second Cause of Action
48. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
in this Complaint with the same force and effect as if set forth fully herein.
49. Several Medical Provider Defendants have commenced litigation and arbitration
proceedings against Liberty Mutual seeking no fault reimbursement for the claims stemming
from the occurrence.
50. Liberty Mutual is entitled to a permanent stay of all the pending litigation and
arbitrations based on the proper denials it has issued.
51. Liberty Mutual has no other adequate remedy at law.
As And For A Third Cause of Action
52. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
in this Complaint with the same force and effect as if set forth fully herein.
53. Liberty Mutual was within its rights to deny all claims retroactive to the date of loss
once the Individual Defendant, Moshe Zirkiev failed to appear for the requested EUOs.
54. Liberty Mutual is therefore entitled to a Declaration that the Medical Provider
Defendants are barred from submitting any new claims or bills to litigation or arbitration
proceedings based on their assignee’s failure to abide by the condition precedent to coverage and
appear for the reasonably requested Examinations under Oath.
13 of 17
FILED: NEW YORK COUNTY CLERK 05/30/2018
11/17/2020 02:04
07:49 PM
AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 1
47 RECEIVED NYSCEF: 05/30/2018
11/17/2020
As And For A Fourth Cause of Action
55. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
in this Complaint with the same force and effect as if set forth fully herein.
56. Liberty Mutual was within its rights to deny all claims.
57. Liberty Mutual is therefore entitled to a Declaration the Plaintiffs properly issued any
and all denials relative to the claims of the Individual Defendant, Moshe Zirkiev.
58. Liberty Mutual has no other adequate remedy at law.
As And For A Fifth Cause of Action
59. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
in this Complaint with the same force and effect as if set forth fully herein.
60. Liberty Mutual was within its rights to deny all claims relative to the Individual
Defendant, Moshe Zirkiev once the Individual Defendant, Moshe Zirkiev failed to appear for his
respective requested EUOs.
61. Liberty Mutual is therefore entitled to a Declaration the Plaintiffs properly issued any
and all denials relative to the claims of the Individual Defendant Moshe Zirkiev based on his
failure to appear for the requested Examinations under Oath.
62. Liberty Mutual has no other adequate remedy at law.
Conclusion
WHEREFORE, Liberty Mutual respectfully requests Judgment against Defendants on
all causes of action for a Declaration that, for the subject losses under motor vehicle insurance
policy issued by Plaintiffs that:
1. Liberty Mutual has no duty to provide coverage or make payment to claims for
No-fault benefits made by or on assignment of the Individual Defendant, and as such is entitled
to a Permanent Injunction barring any and all suits between the parties from continuing;
2. Liberty Mutual is entitled to a stay and ultimately dismissal of all pending
litigation and arbitration in connection with the no-fault billing
Preview
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 11/17/2020 Exhibit A FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 RS/lae SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiffs SUMMONS Index No.: -against – MOSHE ZIRKIEV “Individual Defendant," -and- 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, "Medical Provider Defendants" collectively, the Defendants. --------------------------------------------------------------------x TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint of the Plaintiffs, a copy of which is hereby served upon you, and to serve copies of your answers upon the undersigned 1 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 within twenty (20) days after service upon you of the Summons and Complaint, exclusive of the day of service (or within 30 days after the service is complete if this summons and complaint is not personally delivered to you within the State of New York). In the event you fail to answer the Plaintiffs’ Complaint, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: White Plains, New York May 21, 2018 Yours etc., _____________________________ Robert J. Spence III, Esq. BURKE, CONWAY & DILLON Attorneys for Plaintiffs LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY 10 Bank Street, Suite 1200 White Plains, NY 10606 914-997-8100 TO: Advanced Recovery Equipment and Supplies LLC c/o DAN HOROWITZ, 1501 Newkirk Ave. Brooklyn New York 11226 Anesthesia Solutions P.C. 108-18 72nd Avenue Forest Hills, New York 11375 Barry Dublin MD 199 Lee Avenue, Suite 192, Brooklyn New York 11211 & 1736 Shore Pkwy. 2 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 Brooklyn, New York 11214 MLJ CHIROPRACTIC P.C. 98-51 Queens Blvd, Rego Park, New York 11374 & 2270 Grand Ave, Baldwin, NY 11510 & 98-120 Queens Blvd. Rego Park New York 11374 Orthocaretech Inc. 9740 62 Drive 4C Rego Park, New York 11374 Protechmed Inc 7064 Kissena Blvd, 3Fl. Flushing, New York 11367 Quality Orthopedics And Complete Joint Care P.C. 144-32 68 Ave. Flushing, New York 11367 & 9814a Metropolitan Ave. Forest Hills, New York 11375 & 550 Newark Ave. Jersey City, New Jersey 07306 Quest Diagnostics Incorporated C/o Corporation Service Company 80 State Street Albany, New York 12207 & 1 Malcolm Ave. Teterboro, New Jersey 07608 & PO Box 663 Norwood MA 02062 Right Hand Medical Assist L.L.C. 142-07 174th Street Jamaica, New York 11434 & 151 West Passaic Street 2nd Fl Rochelle Park, New Jersey 07662 3 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 & 550 Newark Ave, Jersey City, New Jersey 07306 Robert Malakov, Physician, P.C. 98-120 Queens Blvd. Suite 1LM Rego Park, New York, 11374 Roxbury Anesthesia, LLC 550 Newark Ave. 5th Floor Jersey City, New Jersey 07306-0550 & PO Box 49 Pittsburgh, PA 15230-0049 Southwest Nassau Radiology, P.C. C/o Friedman, Harfenist Kraut & Perlstein LLP 3000 Marcus Ave. #2E1, Lake Success, New York 11042 & 147 E. Merrick Road Valley Stream New York 11580 Stillwell Chiropractic P.C. 1736 Shore Parkway Brooklyn, New York 11214 Surgicore of New Jersey City, LLC. 550 Newark Ave Fl 5 Jersey City, New Jersey 07306-1326 Valuecare Pharmacy Inc. 8269 Parsons Blvd. Jamaica, New York 11432 Virginia Ferrigno, LMT 103 Mosel Avenue Staten Island, New York 10304 4 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 RS/lae SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiffs -against - VERIFIED COMPLAINT MOSHE ZIRKIEV, "Individual Defendant" Index No.: -and- 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, "Medical Provider Defendants" collectively, the Defendants. --------------------------------------------------------------------x Plaintiffs, LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY (hereinafter “Plaintiffs” or “Liberty Mutual”) by and through its attorneys, Law Office of Burke, Conway & Dillon as set forth in its Verified Complaint in this action, hereby allege, upon information and belief, as follows: 5 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 Introduction This is an action for a declaratory judgment pursuant to CPLR § 3017(b) defining and declaring the rights, duties, obligations and legal relationships by and between the Plaintiffs and the above-named Defendant. 1. This action stems from claims by the Medical Provider Defendants seeking reimbursement for bills submitted to the Plaintiffs for reimbursement under New York’s No- Fault laws. This action seeks a Preliminary Injunction barring the Defendants from seeking any No-Fault reimbursement in connection with all claims brought out of the alleged motor vehicle accident involving the Individual Defendant as detailed hereinafter; a Stay of all pending litigation and/or arbitrations now brought by the Medical Provider Defendants involving this claim that exist in the Civil Courts of the City of New York or elsewhere; a prohibition of the Defendants from further submitting bills to Plaintiffs for No-Fault reimbursement connected with this claim, and an overall Declaration from the Court affirming that the denials of all claims for No-Fault benefits by the Plaintiffs were proper. Jurisdiction And Venue 2. This court has personal jurisdiction over this matter under CPLR §§301, 302(a)(1), and 302(a)(3). 3. Venue is proper in based on Plaintiffs transacting business in New York County by virtue of selling policies of automobile insurance to residents of New York County. Moreover, Plaintiffs maintain several office locations in New York County including an office at One Battery Park Plaza, 30th Floor New York, NY 10004. Parties Plaintiffs 4. Collectively, the Plaintiffs are insurance companies under the Liberty Mutual umbrella that are authorized to write insurance policies in New York State. 5. Plaintiff, LM General Insurance Company is a Liberty Mutual Company, a Massachusetts corporation with a principal place of business at 175 Berkeley Street, Boston, Massachusetts 02116. 6. Liberty Mutual is authorized to write insurance policies in New York State and Liberty Mutual transacts business in all counties of the State of New York. 6 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 7. Plaintiffs wrote an insurance policy issued to Louba Zirkiev and Khibor Zirkiev. Defendants Individual Defendant 8. Upon information and belief, Defendant Moshe Zirkiev (hereinafter, “Zirkiev) is an individual residing in the State of New York at 6730 166th St, Fresh Meadows, NY 11365. Medical Provider Defendants 9. Upon information and belief, Defendant ADVANCED RECOVERY EQUIPMENT and SUPPLIES LLC, is a domestic limited liability company which is transacting or has transacted business in the State of New York with an address of 1501 Newkirk Ave., Brooklyn, New York 11226. 10. Upon information and belief, Defendant ANESTHESIA SOLUTIONS P.C., is a domestic professional corporation which is transacting or has transacted business in the State of New York with an address of 108-18 72nd Avenue, Forest Hills, New York 11375. 11. Upon information and belief, Defendant BARRY DUBLIN MD, is a physician who is transacting or has transacted business in the State of New York with an address of 199 Lee Avenue, Suite 192, Brooklyn New York 11211 and 1736 Shore Pkwy, Brooklyn, New York 11214. 12. Upon information and belief, Defendant MLJ CHIROPRACTIC P.C., is a domestic professional corporation which is transacting or has transacted business in the State of New York with an address of 98-51 Queens Blvd, Rego Park, NY 11374 and 2270 Grand Ave, Baldwin, NY 11510 and 98-120 Queens Blvd., Rego Park New York 11374. 13. Upon information and belief, Defendant ORTHOCARETECH INC. is a domestic business corporation, which is transacting or has transacted business in the State of New York with an address of . 9740 62 Drive 4C Rego Park, New York 11374. 14. Upon information and belief, Defendant PROTECHMED INC is a domestic business corporation which is transacting or has transacted business in the State of New York with an address of 7064 Kissena Blvd, 3Fl, Flushing, New York 11367. 15. Upon information and belief, Defendant QUALITY ORTHOPEDICS AND COMPLETE JOINT CARE P.C., is a domestic professional corporation which is transacting or has transacted business in the State of New York and the State of New Jersey with an address of 7 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 144-32 68 Ave., Flushing, New York 11367; 9814a Metropolitan Ave., Forest Hills, NY 11375 and 550 Newark Ave., Jersey City, New Jersey 07306. 16. Upon information and belief, Defendant QUEST DIAGNOSTICS INCORPORATED, is a foreign business corporation which is transacting or has transacted business in the State of New York with an address of 80 State Street Albany, NY 12207; and is located at 1 Malcolm Ave. Teterboro, NJ 07608 and a mailing address of PO Box 663 Norwood MA 02062 and evaluating patients treating at 98-120 Queens Blvd, Rego Park, NY 11374 and seeking New York No-Fault benefits as a result of those evaluations. 17. Upon information and belief, Defendant RIGHT HAND MEDICAL ASSIST L.L.C., is a which is a medical ambulatory surgery center which is transacting or has transacted business in the State of New York and the State of New Jersey with an address of 142-07 174th Street, Jamaica, New York 11434; 151 West Passaic Street 2nd Fl Rochelle Park, New Jersey 07662 and 550 Newark Ave, Jersey City, NJ 07306. 18. Upon information and belief, Defendant ROBERT MALAKOV, PHYSICIAN, P.C., is a domestic professional corporation which is transacting or has transacted business in the State of New York with an address of 98-120 Queens Blvd. Suite 1LM Rego Park, New York, 11374. 19. Upon information and belief, Defendant ROXBURY ANESTHESIA, LLC is physicians anesthesiology service which is transacting or has transacted business in the State of New Jersey with an address of 550 Newark Ave. 5th Floor, Jersey City, NJ 07306-0550 and a mailing address of PO Box 49 Pittsburgh, PA 15230. 20. Upon information and belief, Defendant SOUTHWEST NASSAU RADIOLOGY, P.C., is a domestic professional corporation which is transacting or has transacted business in the State of New York with an address of 147 E. Merrick Road, Valley Stream NY 11580 and 3000 Marcus Ave. #2E1, Lake Success, NY 11042. 21. Upon information and belief, Defendant STILLWELL CHIROPRACTIC P.C., is a domestic professional corporation which is transacting or has transacted business in the State of New York with an address of 1736 Shore Parkway, Brooklyn, New York 11214. 22. Upon information and belief, Defendant SURGICORE OF NEW JERSEY CITY, LLC is a medical facility that is transacting or has transacted business in the State of New Jersey with an address of 550 Newark Ave Fl 5, Jersey City, NJ -07306 and evaluating patients treating 8 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 at 98-120 Queens Blvd, Rego Park, NY 11374 and seeking New York No-Fault benefits as a result of those evaluations. 23. Upon information and belief, Defendant VALUECARE PHARMACY INC., is a domestic business corporation that is transacting or has transacted business in the State of New York with an address of 8269 Parsons Blvd., Jamaica, New York 11432. 24. Upon information and belief, Defendant VIRGINIA, FERRIGNO LMT, is a licensed massage therapist that is transacting or has transacted business in the State of New York with an address of 103 Mosel Avenue, Staten Island, NY 10304. Factual Background 25. This action arises out of claims for no-fault reimbursement stemming from a motor vehicle accident involving Individual Defendants, Moshe Zirkiev, on May 23, 2017 (hereinafter referred to as “the occurrence” or “the accident”) wherein an alleged collision occurred between a vehicle operated by Moshe Zirkiev and a vehicle operated by unknown, owned by Call A Head Corp. 26. The policy (“the policy”) in question was issued to Louba Zirkiev and Khibor Zirkiev under policy number AOS22815352640 effective 4/08/2017 through 4/08/2018 with limits of no-fault medical bill coverage of $50,000 per person. 27. According to the police report, the accident occurred on May 23, 2017, at Queens Boulevard and 68th St., Queens, NY. Moshe Zirkiev’s 2004 Lexus sedan was parked on Queens Boulevard at 68th Street when a truck owned and registered to Call A Head Corp was traveling westbound on Queens Blvd. and allegedly side swiped Zirkiev’s vehicle and fled the scene. 28. Following the accident, the Individual Defendant sought medical treatment for his alleged injuries. 29. The Medical Provider Defendants then submitted bills on assignment from the applicable Individual Defendant to the Plaintiffs seeking No-Fault reimbursement. 30. The following Medical Provider Defendants submitted bills for Moshe Zirkiev: All Billing for Zirkiev: ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC 1244.73 ANESTHESIA SOLUTIONS P.C. 148.69 BARRY DUBLIN MD 503.01 MLJ CHIROPRACTIC P.C. 939.18 9 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 ORTHOCARETECH INC. 2567.5 PROTECHMED INC 632.32 QUALITY ORTHOPEDICS AND COMPLETE JOINT CARE P.C. 12354.77 QUEST DIAGNOSTICS INCORPORATED $177.94 RIGHT HAND MEDICAL ASSIST L.L.C. $2,423.73 ROBERT MALAKOV, PHYSICIAN, P.C. $5,739.56 ROXBURY ANESTHESIA, LLC $2,100.00 SOUTHWEST NASSAU RADIOLOGY, P.C. $3,549.07 STILLWELL CHIROPRACTIC P.C. $54.73 SURGICORE OF NEW JERSEY CITY, LLC. $8,265.42 VALUECARE PHARMACY INC. $548.78 VIRGINIA FERRIGNO, LMT 80.68 Total Billing $41,330.11 31. The total medical billing under the claim to date is $41,330.11. 32. The No-Fault reimbursement laws of the State of New York call for the swift payment of medical bills by the insurer of the vehicle involved in the motor vehicle accident but permit the insurer to disallow payments for those not medically necessary, those medical bills for treatment unrelated to the accident, or those for which there is no coverage. Further, it allows providers to conduct reasonable investigation and require Examinations Under Oath (EUO) of the parties to determine the legitimacy of the claims. 33. Upon receipt of the claim, an investigation was begun due to the loss facts and concerns whether Zirkiev was actually in the vehicle at the time of the alleged loss. As part of the investigation, Examinations Under Oath were scheduled for the Individual Defendant, Zirkiev. 34. EUOs were scheduled for September 20, 2017 and on November 9, 2017. Letters scheduling the EUOs were sent to the claimant and his attorney on August 7, 2017 and October 24, 2017. However, Zirkiev did not appear for any of the scheduled EUOs despite proper notification. 35. Based on the Individual Defendant’s failure to attend his respective EUOs that were scheduled for him, Plaintiffs timely denied all bills submitted by the Medical Provider Defendants. 10 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 Statement of Facts Applicable Law 36. Plaintiffs are entitled to defend any No-Fault claim, regardless of initial denial, whenever there is a “lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident.” Cen Gen Hosp. v. Chubb Ins., 90 N.Y.2d 195 (1997); Zappone v. Home Ins., 55 N.Y.2d 131 (1982); Albert Schiff Assoc. v. Flack, 51 N.Y.2d 692 (1980); Metro Med. v. Eagle Ins. Co., 293, A.D.2d 751 (2d Dep’t 2002). 37. Under the policy claimants are obligated to appear for Examinations Under Oath (“EUO”) to substantiate their claim. This policy clause is in accordance with the applicable New York law. 38. Each bill submitted by the Medical Provider Defendants for reimbursement to Plaintiffs is also governed by New York State Regulation 68A, NYCRR § 65-1.1, Conditions, Actions Against Company and Proof of Claim, which states that an insurer like the Plaintiffs may require any insured making a claim under the policy to provide information regarding the legitimacy of the claim in a reasonable manner and that “No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage … Upon request by the Company, the eligible injured person or that person’s assignee or representative shall: (a) execute a written proof of claim under oath; (b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same; (c) provide authorization that will enable the Company to obtain medical records; and (d) provide any other pertinent information that may assist the Company in determining the amount due and payable.” 39. Coverage cannot be created after an occurrence. It must exist originally or it does not exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 712 N.Y.S2d 433 (2000); CGU Ins v. Guadagno, 280 A.D.2d 509, 720 N.Y.S2d 201 (2d Dep’t 2001). 40. An assignee does not stand in a better position than his assignor. “He is subject to all the equities and burdens which attach to the property assigned because he receives no more and can do no more than his assignor.” Int’l Ribbon Mills, Ltd. v. Arjan Ribbons, Inc., 36 N.Y.2d 11 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 121, 365 N.Y.2d 808, 811 (1975); See also Abraham v. Hanover Ins. Co., 66 A.D.2d 808, 411 N.Y.S2d 355 (2d Dep’t 1978). 41. The Individual Defendant must complete the condition precedent to effect coverage. Such is never more in play when a claimant fails to appear for a requested Independent Medical Examination (“IME”) or as in this instance, the requested EUO. In Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1st Dept, 2011), the Appellate Division, First Department held; “The failure to appear for IMEs requested by the insurer “when, and as often as, [it] may reasonably require” (Insurance Department Regulations [11 NYCRR] § 65–1.1) is a breach of a condition precedent to coverage under the No–Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997]. Accordingly, when defendants' assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued ( see Insurance Department Regulations [11 NYCRR] § 65–3.8 [c]; Fogel, 35 A.D.3d at 721–22, 827 N.Y.S.2d 217).” Unitrin Advantage, at 1 There is no doubt that the requirement for an appearance at the EUO also would have a similar result as in Unitrin. In Crotona Heights Medical, P.C. v. Farm Family Cas. Ins. Co. 27 Misc.3d 134(A), 910 N.Y.S.2d 404 N.Y.Sup.App.Term, 2010, 2nd, 11th and 13th Judicial Districts, the court held; “The appearance of the eligible injured person's assignee at an EUO upon a proper request is a condition precedent to the insurer's liability on the policy ( see Insurance Department Regulations [11 NYCRR] § 65–1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc.3d 142[A], 2009 N.Y. Slip Op 51732[U] ).” Crotona Heights Medical, P.C., at 134 42. Each and every one of the Medical Provider Defendants is an assignee of the Individual Defendant. 12 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 As And For A First Cause of Action 43. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth in this Complaint with the same force and effect as if set forth fully herein. 44. Liberty Mutual is not obligated to pay any bills, whether submitted prior to or after the requested Examinations under Oath. 45. Liberty Mutual was within its rights deny all claims retroactive to the date of loss. 46. Liberty Mutual is therefore entitled to a Permanent Injunction barring all the pending litigation and arbitrations between the parties from proceeding based on the proper denials it has issued. 47. Liberty Mutual has no other adequate remedy at law. As And For A Second Cause of Action 48. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth in this Complaint with the same force and effect as if set forth fully herein. 49. Several Medical Provider Defendants have commenced litigation and arbitration proceedings against Liberty Mutual seeking no fault reimbursement for the claims stemming from the occurrence. 50. Liberty Mutual is entitled to a permanent stay of all the pending litigation and arbitrations based on the proper denials it has issued. 51. Liberty Mutual has no other adequate remedy at law. As And For A Third Cause of Action 52. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth in this Complaint with the same force and effect as if set forth fully herein. 53. Liberty Mutual was within its rights to deny all claims retroactive to the date of loss once the Individual Defendant, Moshe Zirkiev failed to appear for the requested EUOs. 54. Liberty Mutual is therefore entitled to a Declaration that the Medical Provider Defendants are barred from submitting any new claims or bills to litigation or arbitration proceedings based on their assignee’s failure to abide by the condition precedent to coverage and appear for the reasonably requested Examinations under Oath. 13 of 17 FILED: NEW YORK COUNTY CLERK 05/30/2018 11/17/2020 02:04 07:49 PM AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 1 47 RECEIVED NYSCEF: 05/30/2018 11/17/2020 As And For A Fourth Cause of Action 55. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth in this Complaint with the same force and effect as if set forth fully herein. 56. Liberty Mutual was within its rights to deny all claims. 57. Liberty Mutual is therefore entitled to a Declaration the Plaintiffs properly issued any and all denials relative to the claims of the Individual Defendant, Moshe Zirkiev. 58. Liberty Mutual has no other adequate remedy at law. As And For A Fifth Cause of Action 59. Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth in this Complaint with the same force and effect as if set forth fully herein. 60. Liberty Mutual was within its rights to deny all claims relative to the Individual Defendant, Moshe Zirkiev once the Individual Defendant, Moshe Zirkiev failed to appear for his respective requested EUOs. 61. Liberty Mutual is therefore entitled to a Declaration the Plaintiffs properly issued any and all denials relative to the claims of the Individual Defendant Moshe Zirkiev based on his failure to appear for the requested Examinations under Oath. 62. Liberty Mutual has no other adequate remedy at law. Conclusion WHEREFORE, Liberty Mutual respectfully requests Judgment against Defendants on all causes of action for a Declaration that, for the subject losses under motor vehicle insurance policy issued by Plaintiffs that: 1. Liberty Mutual has no duty to provide coverage or make payment to claims for No-fault benefits made by or on assignment of the Individual Defendant, and as such is entitled to a Permanent Injunction barring any and all suits between the parties from continuing; 2. Liberty Mutual is entitled to a stay and ultimately dismissal of all pending litigation and arbitration in connection with the no-fault billing