Preview
FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- --------------------------------------------------------------X Index No: 154804/17
UNITRIN ADVANTAGE INSURANCE COMPANY,
AFFIRMATION IN
Plaintiff SUPPORT OF MOTION
- against-
ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C.,
AUTO RX L.C., CITIMEDICAL I, PLLC, CORONA MEDICAL
PLAZA, P.C., ELMONT REHAB PT, P.C., EMA MEDICAL
EQUIPMENT CORP., FAST CARE MEDICAL DIAGNOSTICS,
PLLC, FRANK S. SEGRETO, M.D., HEALTH BALANCE
MEDICAL., P.C., SATYA DRUG CORP. d/b/a FARMACIA
CENTRAL, UGP ACUPUNCTURE, P.C., DWANYE CORWISE
and ANGELA SALGUEDO,
Defendants.
--------------------------------------------------X
Oleg Rybak, Esq., an attorney duly admitted to the practice of law in the courts of the State of New
York, under the penalties of perjury affirms as follows:
1. I am a member of The Rybak Firm, PLLC, attorneys for defendants UGP ACUPUNCTURE, P.C.
(hereinafter "UGP") and am fully familiar with the papers and proceedings heretofore had herein.
2. This affirmation is submitted in support of the instant motion seeking the following relief:
a. Pursuant to CPLR § 3101, granting a protective order preventing the plaintiff from taking the
depositions of UGP; AND
defendants'
b. Pursuant to CPLR § 3124, compelling Plaintiff to fully comply with the discovery
demands, including serving proper and complete responses to defendant's demands for
discovery and inspection and production of Plaintiff's entire Special Investigations Unit file
and Claim file.
STATEMENT OF FACTS
3. The instant action was commenced by the filing of a Summons and Verified Complaint
"A,"
("Complaint"), a copy of which is annexed hereto as Exhibit in this Court. The Complaint seeks an
advisory declaratory judgment declaring that plaintiff is not obligated to pay any no-fault benefits to, inter
alia, UGP.
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4. This action putatively arose out of plaintiff's intentional and willful breach of contract in its failure
to timely and properly pay the first party beneficiary claims of UGP after plaintiff had received UGP's
timely and properly submlfted claims for No-Fault reimbursements. Those claims sought payment for
medically necessary services provided by UGP to persons entitled to receive benefits under the New York
Insurance Law and the No-Fault Implementing Regulations ("Regulations") promulgated thereunder. See
Insurance Law § 5106(a); 11 NYCRR 65-3.8.
5. The claims for no fault benefits were undeniably received by plaintiff, but remain unpaid and
overdue in violation of the insurance law and rules and regulation. See Insurance Law § 5106(a); 11
NYCRR 65-3.8; Fair Price Med. Sunoly Corp. v. Travelers Indem. Co., 10 N.Y.3d 556 (2008); Presbyterian
Hospital v. Maryland Casualty Co., 90 N.Y.2d 274 (1997).
6. In the case at bar, plaintiff asserts that UGP is not entitled to no-fault benefits arising from the
motor vehicle accident that occurred on or about May 9, 2016 because the accident was purportedly
intentionally caused and because the claimant ANGEL SALGUEDO allegedly failed to appear for
independent medical examinations ("IMEs"). Plaintiff further contends in a conclusory maññcr and with
no support whatsoever that UGP submitted claims for services rendered by independent contractors.
7. It is undisputed that at the time of the subject accident, plaintiff was the No-Fault insurance carrier
coverage for a claimant's injuries and and responsible for payment of submjtted first-
providing was, is, any
party No-Fault benefits.
8. On or about August 2, 2018, UGP served its Answer with discovery demands. Inter alia, the
discovery demands requested the production of Plaintiffs SIU file and claim file pertaining to the subject
"B."
accident. A copy of the Answer along with the discovery demands is annexed hereto as Exhibit
9. To date, Plaintiff has not provided UGP with any of the sought-after information, which is
absolutely vital to their defense to this action. Instead of providing the requested information that UGP
requires in order to properly defend this action, Plaintiff seeks to burden and harass UGP with deman& for
depositions that will not lead to any material evidence that is not already in Plaintiffs possession.
APPLICATION FOR A PROTECTIVE ORDER
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10. Here, Plaintiff does not, and indeed cannot, demonstrate that UGP, or itsagents, was in any way
involved in,or connected with, the motor vehicle accident that gave rise to this action. To the extent that
Plaintiff alleges thatthis accident was purportedly staged or intentional event, same further highlights the
need for Plaintiff to provide itsinvestigative materials to UGP, as ithas absolutely no personal knowledge
concerning how the accident was caused.
11. Thus, on the record before this Court, there is simply no basis upon which UGP can provide
indepe;;déñt material and necessary evidence as to the circumstances surrounding the subject accident or
the alleged EUO no-shows. See Saieh by Saieh v. Demetro, 201 A.D.2d 477 (2d Dep't 1994) (protective
order granted where "[t]he plaintiffs failed to make the required detailed showing of the necessity of
deposing the present Brooklyn Borough Engineer for the New York City Departmcat of Transportation.
They failed to establish that she had any personal knowledge of the information sought, or that her
knowledge extended beyond the information already provided to them in documentary form...).
12. Patently here, a deposition of UGP will not result in any evidence that isnot already in thePlaintiffs
possession With respect to the Plaintiffs claim that the subject motor vehicle sccident was a staged event,
UGP have no knowledge of the circumstances surromWng the accident. Their sole knowledge concerning
the accident is that they provided medical tree*=ent for injuries suffered by car accident victims. It is
clairüâñts'
patently clear from the medical records (that Plaintiff is in possession of) that they suffered
injuries following the accident.
13. Therefore, itis patent that the use of a deposition as a discovery device to ascertain information
that is already within Plaintiffs possession is overly burdensome and should not be allowed. See Wolin v.
St. Vincent's Hosp. and Medical Center of New York, 304 A.D.2d 348 (1stDep't 2003). To be sure, UGP,
who treated persons injured in a car accident, lack any knowledge concerning the accident, as he was not a
party to same, and, accordingly, discovery on this issue would be absurdly futile.Resdtart, any discovery
demands pertaining to that issue are palpably improper. Fletlands Med., P.C. v. Allstate Ins. Co., 35
Misc.3d 127(A) (App. Term, 2d Dep't, 2012).
14. Plaintiff,on the other hand, supposedly conducted an investigation of the motor vehicle accident
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in question, and received a surfeit of information from treating physicians including all medical records
relating to the treatment of the claimants. These records include diagñ0stic pr0cedures and test results,
physicians' claimant
notes, evaluations, and other records pertaiñiñg to the treatmcat received by the
15. Thus, Plaintiffs demands can only serve to intimidate and harass UGP in forcing them to release
or discontinue their claims for reimbursement and cause them to incur unnecessary legal expenses in
defending this action.
16. When, as in the instant matter, a party seeks disclosure of information that is not "material and
necessary"
to claims or defenses in a case, the Court "may at any time on its own initiative,or on motion
of any party or of any person from whom discovery is sought, make a protective order deñying, limiting
device."
conditioning or regulating the use ofany disclosure CPLR § 3103(a).
17. Under CPLR § 3101(a), the Court isvested with broad discretion to detennine what information is
"material and necessary". People v. Pharmacia Coro.. 39 A.D.3d 1117 (3d Dep't 2007). And, the party
seeking disclosure must demonstrate how the requested discovery will result in the disclosure of relevant
evidence or is reasonably calculated to lead to the discovery of information bcariñg on the claims. IL; see
also Vyas v. Campbell, 4 A.D.3d 417 (2d Dep't 2004).
18. The public policy purpose of protective orders is to "prevent unreasonable annoyance, expense,
courts."
embarrassment, disadvantage, or other prejudice to any person or the CPLR 3103(a). Because in
this case the Plaintiff seeks to depose an individual who possesses no knowledge or information that is
relevant or material to the Plaintiffs firstinstance burden to establish that it isentitled to the requested
declaratory judgment, the Court should grant UGP's motion as it is the very entity that the Legislature
sought to protect by the enactment of CPLR 3103(a) against unreasonable harassment, intimidation,
annoyance, expense and prejudice.
19. The protective reliefUGP seek is not in any manner unusual or extracidiñser. Courts routinely
vacate deposition notices when presented with evidence showing the deponent does not have knowledge or
thattheir testimony will have no evidentiary value. See e.g.Melohn v. Beard, 167 A.D.2d 174 (1stDep't
1990); Davis v. Cornerstone Telephone Co., LLC, 78 A.D.3d 1263 (3d Dep't 2010); Janian v. Barnes, 2
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A.D.3d 1033 (3d Dep't 2003).
20. For instance, in 21st Century Advantage Insurance Company v. Pedro Cabral,et al.,Supreme Court,
Nassau County, Index No. 12683/11, the Honorable Steven M. Jaegar found that the pinintiff insurance
carrierwas not entitled to a deposition of certain defendant medical providers because the insurance carrier
could not demonstrate how the testimony of the medical providers was material and necessary to
determining whether the motor vehicle accidents at issue were staged events. Furthermore, Judge Jaegar
providers'
held that the sought after EBTs were improper and thus the medical abjecticñ to the EBTs was
not untimely.
21. Similarly here, itispatent that a deposition of UGP will not lead to material and necessary evidence
relating to the circumstances surrounding the accident or the alleged IME no-shows (as they were not parties
to same) and cannot provide indepcñdcat testimony as to those issues that are not already in Plaintiffs
possession. Moreover, with respect to the allegation that UGP substted claims for services rendered by
indepeñdeñt contractor, UGP categorically denies the allegations. Indeed, the claims submitted by UGP
set forth the exact individuals who performed the medical services at issue here, thus leaving no doubt as
to this issue. --
22. In a matter very similar to the one before this Court, the Appellate Term 2d Judicial Department
held that "In the instant case, defendant cross-moved for summary judgmcat disMssing the cemplaint based
accident"
upon a "staged defense . .. Moreover, as defendant has not shown how a doctor, who was not
alleged to have been at the scene of the accident, would have relevant information regarding the staging of
an accident, the deposition and discovery demands of plaintif ordered by the Civil Court were palpably
."
improper . . . Flatlands Med., P.C. v. Allstate Ins.Co., 35 Misc 3d 127(A) (App. Term, 2d Dep't, 2012)
(emphasis added). This Court likewise should reach the same conclusion.
23. Itis well recognized that the failure to demonstrate that discovery will lead to evidence not currently
in the Plaintiffs possession isgrounds for a protective order. See Kobre v. United Jewish Appeal-
granting
Federation of Jewish Philanthropies of New York, Inc., 288 A.D.2d 157 (IstDep't 2001) ("The grant of a
protective order against deposition of certain additional witnesses sought by plaintiffs was within the
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discretion of the motion court, since plaints)fsfailed to demonstrate that such witnesses possessed any
information not previously made available to them.") (emphasis added); Wolin v. St.Vincent's Hosp. and
Medied Center of New York, 304 A.D.2d 348 (1st Dep't 2003). The situation in this case is similar to the
situation in both Kobre and Wolin.
24. Here, Plaintiff cannot demonstrate that UGP's testimony will reveal addinonal evidence that isnot
already in the Plaintiffs possession. Importantly, the Plaintiff has refused to provide UGP with itsspecial
investigation unit file or with an individual who has personal knowledge pertaining to any investigation of
the accident. Presumptively, Plaintiff commenced this action secure in the knowledge that itis in
possession of all material and necessary evidence and information relating to the accident to determine
whether the assigners were involved in a real collision or satained real injuries and whether IMEs were
properly held, and the claimmt did not appear. It ispatent that such information is both material and
necessary to UGP's defense of the case at bar,who were neither parties to the IMEs nor have any knowledge
pertaining to how the accident occurred.
25. Addidonally, itwas Plaintiff,and parties retaiñcd by Plaintiff, who were responsible for cañdüeting
an invesdganon of the subject accidêñt, and, as such, any information relating to same isexclusively within
the Plaintiff's control. See American Tr. Ins. Co. v. Jaga Med. Servs., P.C., 2015 NY Slip Op 03925 (1st
Dep't 2015).
26. In light of the fact that UGP possess no relevant kñ0wicdge and any material and necessary
information concerning the Plaintiffs claims, and a deposition willnot reveal any evidence not already in
the Plaintiffs possession that will assistthe Plaintiff in theprosecution of thisaction, the Court should grant
the instant motion for a protective order.
PLAINTIFF'S APPLICATION TO COMPEL DISCOVERY
27. CPLR § 3101 requires fulldisclosure of all matters material and necessary in the prosecution or
necessary,"
defense of an action. Disclosure of "all matter material and is to be "interpreted liberally to
require disclosure, upon request, of any facts bearing on the controversy which will assist preparanon for
prolixity."
trialby sharpening the issues and reducing delay and See Allen v. Crowell-Collier Publ. Co., 21
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.
N.Y.2d 403, 406 (1968); Osowaki v. AMEC Constr. Mgt., Inc.,69 A.D.3d 99, 106 (1st Dep't 2009). As
set forth in Allen, whether a particular item is material and necessary and thus the proper subject of
reason."
discovery is subject to a testof "usefulness and Allen v. Crowell-Collier Publ. Co. at 406.
28. The gravamen of the Complaint isthat coverage under the subject insurance policies isnot available
here because the accident was purportedly the product of an intentional collision.
29. Importantly, although due request was made, Plaintiff has failed to provide UGP with a number of
discovery documents, in particular the Plaintiffs Special Investigations Unit ("SIU") file pertaining to the
accident at issue here, as well as the Plaintiffs claim file,which would provide information concerning the
Plaintiffs handling of the claims at issue.
30. Plaintiff has made no reeañingful attempt to provide UGP with the requested discovery and instead
has seemingly taken the position that itwill ignore UGP's demands for production of dccureent discovery
that were served simultaneously with UGP's Answer. In a good faith effort to resolve this discovery
dispute, UGP requested thatPlaintiff provide discovery responses to the ountanding demañds. A true copy
of UGP's good faith correspondmce is annexed hereto as Exhibit "C".
31. In the instant matter, itis clear that discovery of the SIU files and claim filespertaining to the
subject accident is absolutely vital here as virtually allof the allegatians of the Caraplaint are based on a
putative investigation conducted by Plaintiff. Therefore, UGP are entitled to discovery ccaccrñing this
investigation so that the basis for Plaintiff's anegations may be uncovered. Without access to this
itis impossible for UGP to challenge the of the Plaintiff's and self-
information, simply veracity conclusory
serving allegations concerning the accident at issue and the resultant claims process.
32. This Court has the authority to order production of Plaintiff's SIU fileand claim file,and the right
to saneden a failure to do so under CPLR R. 3124 which provides that"if a person fails to respond to or
comply with any request, notice, interrogatory, demand, question or order under thisarticle,except a notice
response."
to admit under section 3123, the party seeking disele=ze may move to compel compliance or a
Plaintif here issuch a person.
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33. In addition, "a party served with a discovery notice has fivedays to move for a protective order.
Where a notice for discovery has not been complied with, a party may proceed under CPLR 3124 to obtain
an order to compel disclosure. In the alternative, the party may proceed under CPLR 3126 to,inter alia,
testifyisig."
preclude certain witnesses from Greuling v. Breakey, 391 N.Y.S.2d 585 (1st Dep't 1977).
."
Moreover, "[I]fa party elects to ignore a notice for discovery and inspection, he does so at his peril.. .
34. "An order to compel disclosure is the proper vehicle to invoke when a party fails to respond to or
Rules."
comply with any request or demand made pursuant to article31 of the Civil Practice Law and MD
Imaging, P.C. v. Progressive Northern Ins. Co., 866 N.Y.S.2d 857 (NY City Ct.,Poughkeepsie, 2008).
35. As the Plaintiff failed to move for a protective order, UGP became entitled to make the instant
motion and are entitled to the relief they seek.
36. The party asserting that a document is exempt from diadnaure based upon a privilege bears the
burden of demonstrating that the material itseeks to withhold is imm'me from discovery. See Bombard v.
Arnica Mutual Insurance Cp., 11 AD3d 647, 647, 783 NYS2d 85, 86 (2d Dep't 2004) (citing Koump v.
Smith, 25 NY2d 287, 294, 303 NYS2d 856, 864 (1969).
37. While, in the abstract, a party asserting privilege may meet their Bombard v. Arnica Mutual
Insurance Co., burden by "identifying the particular material with respect to which the privilege is asserted
litigation."
and estabhshing with specificity that the material was prepared exclusively in anticipation of
Bombard, supra (citing Chakmakjian v. NYRAC, Inc., 154 A.D.2d 644 (2d Dep't 1989), multi-motivated
reports or documents prepared in the ordinary course of business or investigation, such as the SlU filehere,
are not privileged.
38. The S1U filein issue was prepared in the course of the claims investigation of the subject incident
in the ordinary course of business and, at the least,is a multi-motivated report that is therefore not
privileged. See Bombard, supra, Landmark Insurance Co. v. Beau Rivage Restaurant, Inc., 121 A.D.2d
98,102 (2d Dep't 1986) ("mixed purpose reports are not exempt from disclosure under CPLR §3101(d)").
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39. In Landmark, the plaintiff employed an independent adjuster and arson expert because the plaintiff
had substatial bona fide reasons to investigate the legitimacy of a claimed loss since the police and fire
officialshad considered the fireto be suspicious in origin. The Landmark court stated that "here itis readily
apparent that the plaintiff empicÿed the adjuster and the arson expert to conduct an investigation for the
purpose of aiding it to decide whether to accept or reject the defendant's claim and not solely for the
litigation."
purpose of preparing for possible li (emphasis added); see also Hawley v. Travelers
Iñdemnity Co., 90 A.D.2d 684 (4th Dep't 1982) (party "failed to show that the report was created
exclusively in preparation for litigation. Mixed purpose reports are not exempt from disclosure under
paragraph 2 of subdivision (d) of CPLR 3101").
40. In the case at bar, the SIU file is inarguably the type of report prepared in connection with a loss
process"
which "aids in the of deciding which course of action to take and, therefore, ismade in the regular
course of business. See Bombard and Landmark, supra.
41. This is a business decision, not a litigation support device. Ithas been widely held that reports by
insurance investigators, adjusters, or attorneys before the decision is made to pay or rejecta claim are not
privileged and are discoverable. See Bertalo's Restaurant. Inc.,240 A.D.2d at 454; see also JR Stevenson
accountants'
Corp v. Dormitory Authority of New York, 112 A.D.2d 113, 119 (1st Dep't 1985) ("the reports
represent an independent verification by the surety of the obligor's claims ...As such they were records
business"
prepared in the ordinary course of and do not qualify for privilege); Westhampton Adult Home,
Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 105 A.D.2d 627 (1st Dep't 1984); Geneva Mortg.
Corp. v. Certain Underwriters at Lloyd's, London, 14 Misc.3d 1233(A) (N.Y. Sup., 2006); Melworm v.
Encompass Indem. Co., 37 Misc.3d 389 (N.Y. Sup., 2012).
42. The SIU fileisone which was prepared to conduct a detailed and Objective evaluation and analysis
of the subject accident. No findings were made regarding the legal rights of any party or non-party. Thus,
the cloak of privilege does not attach to such commimications.
43. Endeed, the Appellate Division, First Department has made clear recently that disclosure of the
plaintiff'sclaim fileis an essential element necessary to oppose a motion for summary judgment. In
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American Tr. Ins. Co. v. Jaga Med. Servs., P.C., 2015 NY Slip Op 03925 (1st Dep't 2015), the First
Department found that "[fjurther discovery on plaintiffs han41ing of the claim so as to determiñe whether,
inter opposition."
alia, the EUOs were timely and properly requested is also essential to justify IA
(Emphasis added). Moreover, "[t]he reason for the EUO request is a fact essential to justify opposition to
plaintiffs summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup
New movant."
Ct, York County 2013]), and such fact isexclusively within the knevdedge and control of the
(Emphasis added).
44. In the matter at bar, Plaintiff makes repeated, yet vague, reference to an investigation that it
conducted of the subject accident. Presumably, the S1U filewould have details concerning this purported
investigation and would disclose whether Plaintiff maintains a sufficient evidentiary basis to support
belief"
Plaintiffs "fe'mded that the accident was intentionally caused.
45. In order to ascertain the veracity and accuracy of Plaintiffs allegations, UGP made due demand for
Plaintiff to produce to produce the contents of itsSIU filepertaining to thismatter in full.
46. In light of the foregoing, UGP respectfully request thatthis Court issue an Order directing Plaintiff
to disclose the SIU file and claim filepertaining to the subject accidents and compel Plaintiff to present for
Examination Before Trial a witness that has personal knowledge of the invesnganon conducted by Plaintiff
of the subject accidents.
WHEREFORE, UGP ACUPUNCTURE, P.C. requests that the Court grant the instant motion in
itsentirety and for such other and furtherrelief as this Court deems just and proper.
Dated: Brooklyn, New York
Febmary 27, 2019
Respec lly submitted,
Oleg Ryl/ak, Esq.
The Rybak Firm, PLLC
Attorneys for Certain Defendants
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
Telephone: (718) 975-2035
TO: GOLDBERG, MILLER & RUBIN
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Attorneys for Plaintly
767 Third Avenue, 24th Floor
New York, New York 10017
.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------ -----------------------X
UNITRIN ADVANTAGE INSURANCE COMPANY,
Index No: 154804/17
Plaintiff
AFFIDAVIT
- against-
ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C.,
AUTO RX L.C., CITIMEDICAL I, PLLC, CORONA MEDICAL
PLAZA, P.C., ELMONT REHAB PT, P.C., EMA MEDICAL
EQUIPMENT CORP., FAST CARE MEDICAL DIAGNOSTICS,
PLLC, FRANK S. SEGRETO, M.D., HEALTH BALANCE
MEDICAL., P.C., SATYA DRUG CORP. d/b/a FARMACIA
CENTRAL, UGP ACUPUNCTURE, P.C., DWANYE CORWISE and
ANGELA SALGUEDO,
Defendants.
_______ __ ____---------------------- ______ ------X
STATE OF NEW YORK )
) SS:
COUNTY OF KINGS )
The undersigned, Lyadmra bd to o ,0wneandP1nc1Pai
UGP ACUPUNCTURE, P.C., being duly sworn does hereby depose and say under the penalties of perjury
that:
1. I am principal and owner of defendant UGP ACUPUNCTURE, P.C. ("UGP") in thisaction and as
such, I have the requisite first-hand detailed knowledge of the factspertaining to this action.
2. I make this affidavit in support of the instant motion seeking a protective order preventing Plaintiff
from taking the deposition of UGP and to set forth the extent of my personal knowledge concerning the
underlying subject motor vehicle accident that occurred on May 9, 2016, for which Plaintiff seeks to
disclaim coverage based on the assertion that UGP's assignor ANGELA SALGUEDO allegedly failed to
appear for indqêñdent medical examinations ("IMEs") and the erroneous contention that UGP utilized the
services of independent contractors in connection with the subject claims. Plaintifffurther cêñtêüds that
the accident was intentionally caused, but does not set forth any factual basis in order to support this
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allegation. I can personally attest that based on my examination and treatment of the claimants, they
suffered significant injuries stemming from the subject motor vehicle accident.
3. This affidavit is based on my review of the Plaintiffs Complaint and the notes and patient files
maintained by my office pertaining to the claiumuts, who are also named as defendants in this action.
4. Having reviewed the said documents, I can state that I have no personal knowledge concerning the
circumstances of how the subject motor vehicle accident occurred or the intent of the individuals who were
involved in the accident.
5. The extent of my knowledge pertaining to this action is that I provided certain medical treatment
to the claimants, who presented to my office complaining of pain as a result of the subject accident.
6. I did not discuss with any of the claimants how the accident occun·ed, nor did they themselves
provide me with that information. Based on my examination of the patients, I have assessed that they
sustained legitimate injuries that required medical treatment and that the pain they were complaining of
would be alleviated by proper acupuncture treatment.
7. I provided the patients with all necessary and proper acupuncture treatmcut that was warranted
given their injuries and my office timely and properly submitted claims for reimbrdsement for the said
patients'
treatment to Plaintiff. with claim I provided Plaintiff of
Along my forms, with true copies the
medical records that relate to the treatment that was rendered to the patient. Thus, Plaintiff is well aware
of the services that I provided in connection with this motor vehicle accident, the dates those services were
rendered, and the amounts billed.
8. At no point during the claims process, or any time thereafter, did Plaintiff object to the of
necessity
the medical services or the propriety of the claim forms. Plaintiff further did not seek additional verification
in connection with the submitted claim forms
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FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - --------------------------------------------------------------X Index No: 154804/17 UNITRIN ADVANTAGE INSURANCE COMPANY, AFFIRMATION IN Plaintiff SUPPORT OF MOTION - against- ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., AUTO RX L.C., CITIMEDICAL I, PLLC, CORONA MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., EMA MEDICAL EQUIPMENT CORP., FAST CARE MEDICAL DIAGNOSTICS, PLLC, FRANK S. SEGRETO, M.D., HEALTH BALANCE MEDICAL., P.C., SATYA DRUG CORP. d/b/a FARMACIA CENTRAL, UGP ACUPUNCTURE, P.C., DWANYE CORWISE and ANGELA SALGUEDO, Defendants. --------------------------------------------------X Oleg Rybak, Esq., an attorney duly admitted to the practice of law in the courts of the State of New York, under the penalties of perjury affirms as follows: 1. I am a member of The Rybak Firm, PLLC, attorneys for defendants UGP ACUPUNCTURE, P.C. (hereinafter "UGP") and am fully familiar with the papers and proceedings heretofore had herein. 2. This affirmation is submitted in support of the instant motion seeking the following relief: a. Pursuant to CPLR § 3101, granting a protective order preventing the plaintiff from taking the depositions of UGP; AND defendants' b. Pursuant to CPLR § 3124, compelling Plaintiff to fully comply with the discovery demands, including serving proper and complete responses to defendant's demands for discovery and inspection and production of Plaintiff's entire Special Investigations Unit file and Claim file. STATEMENT OF FACTS 3. The instant action was commenced by the filing of a Summons and Verified Complaint "A," ("Complaint"), a copy of which is annexed hereto as Exhibit in this Court. The Complaint seeks an advisory declaratory judgment declaring that plaintiff is not obligated to pay any no-fault benefits to, inter alia, UGP. 1 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 4. This action putatively arose out of plaintiff's intentional and willful breach of contract in its failure to timely and properly pay the first party beneficiary claims of UGP after plaintiff had received UGP's timely and properly submlfted claims for No-Fault reimbursements. Those claims sought payment for medically necessary services provided by UGP to persons entitled to receive benefits under the New York Insurance Law and the No-Fault Implementing Regulations ("Regulations") promulgated thereunder. See Insurance Law § 5106(a); 11 NYCRR 65-3.8. 5. The claims for no fault benefits were undeniably received by plaintiff, but remain unpaid and overdue in violation of the insurance law and rules and regulation. See Insurance Law § 5106(a); 11 NYCRR 65-3.8; Fair Price Med. Sunoly Corp. v. Travelers Indem. Co., 10 N.Y.3d 556 (2008); Presbyterian Hospital v. Maryland Casualty Co., 90 N.Y.2d 274 (1997). 6. In the case at bar, plaintiff asserts that UGP is not entitled to no-fault benefits arising from the motor vehicle accident that occurred on or about May 9, 2016 because the accident was purportedly intentionally caused and because the claimant ANGEL SALGUEDO allegedly failed to appear for independent medical examinations ("IMEs"). Plaintiff further contends in a conclusory maññcr and with no support whatsoever that UGP submitted claims for services rendered by independent contractors. 7. It is undisputed that at the time of the subject accident, plaintiff was the No-Fault insurance carrier coverage for a claimant's injuries and and responsible for payment of submjtted first- providing was, is, any party No-Fault benefits. 8. On or about August 2, 2018, UGP served its Answer with discovery demands. Inter alia, the discovery demands requested the production of Plaintiffs SIU file and claim file pertaining to the subject "B." accident. A copy of the Answer along with the discovery demands is annexed hereto as Exhibit 9. To date, Plaintiff has not provided UGP with any of the sought-after information, which is absolutely vital to their defense to this action. Instead of providing the requested information that UGP requires in order to properly defend this action, Plaintiff seeks to burden and harass UGP with deman& for depositions that will not lead to any material evidence that is not already in Plaintiffs possession. APPLICATION FOR A PROTECTIVE ORDER 2 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 10. Here, Plaintiff does not, and indeed cannot, demonstrate that UGP, or itsagents, was in any way involved in,or connected with, the motor vehicle accident that gave rise to this action. To the extent that Plaintiff alleges thatthis accident was purportedly staged or intentional event, same further highlights the need for Plaintiff to provide itsinvestigative materials to UGP, as ithas absolutely no personal knowledge concerning how the accident was caused. 11. Thus, on the record before this Court, there is simply no basis upon which UGP can provide indepe;;déñt material and necessary evidence as to the circumstances surrounding the subject accident or the alleged EUO no-shows. See Saieh by Saieh v. Demetro, 201 A.D.2d 477 (2d Dep't 1994) (protective order granted where "[t]he plaintiffs failed to make the required detailed showing of the necessity of deposing the present Brooklyn Borough Engineer for the New York City Departmcat of Transportation. They failed to establish that she had any personal knowledge of the information sought, or that her knowledge extended beyond the information already provided to them in documentary form...). 12. Patently here, a deposition of UGP will not result in any evidence that isnot already in thePlaintiffs possession With respect to the Plaintiffs claim that the subject motor vehicle sccident was a staged event, UGP have no knowledge of the circumstances surromWng the accident. Their sole knowledge concerning the accident is that they provided medical tree*=ent for injuries suffered by car accident victims. It is clairüâñts' patently clear from the medical records (that Plaintiff is in possession of) that they suffered injuries following the accident. 13. Therefore, itis patent that the use of a deposition as a discovery device to ascertain information that is already within Plaintiffs possession is overly burdensome and should not be allowed. See Wolin v. St. Vincent's Hosp. and Medical Center of New York, 304 A.D.2d 348 (1stDep't 2003). To be sure, UGP, who treated persons injured in a car accident, lack any knowledge concerning the accident, as he was not a party to same, and, accordingly, discovery on this issue would be absurdly futile.Resdtart, any discovery demands pertaining to that issue are palpably improper. Fletlands Med., P.C. v. Allstate Ins. Co., 35 Misc.3d 127(A) (App. Term, 2d Dep't, 2012). 14. Plaintiff,on the other hand, supposedly conducted an investigation of the motor vehicle accident 3 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 in question, and received a surfeit of information from treating physicians including all medical records relating to the treatment of the claimants. These records include diagñ0stic pr0cedures and test results, physicians' claimant notes, evaluations, and other records pertaiñiñg to the treatmcat received by the 15. Thus, Plaintiffs demands can only serve to intimidate and harass UGP in forcing them to release or discontinue their claims for reimbursement and cause them to incur unnecessary legal expenses in defending this action. 16. When, as in the instant matter, a party seeks disclosure of information that is not "material and necessary" to claims or defenses in a case, the Court "may at any time on its own initiative,or on motion of any party or of any person from whom discovery is sought, make a protective order deñying, limiting device." conditioning or regulating the use ofany disclosure CPLR § 3103(a). 17. Under CPLR § 3101(a), the Court isvested with broad discretion to detennine what information is "material and necessary". People v. Pharmacia Coro.. 39 A.D.3d 1117 (3d Dep't 2007). And, the party seeking disclosure must demonstrate how the requested discovery will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bcariñg on the claims. IL; see also Vyas v. Campbell, 4 A.D.3d 417 (2d Dep't 2004). 18. The public policy purpose of protective orders is to "prevent unreasonable annoyance, expense, courts." embarrassment, disadvantage, or other prejudice to any person or the CPLR 3103(a). Because in this case the Plaintiff seeks to depose an individual who possesses no knowledge or information that is relevant or material to the Plaintiffs firstinstance burden to establish that it isentitled to the requested declaratory judgment, the Court should grant UGP's motion as it is the very entity that the Legislature sought to protect by the enactment of CPLR 3103(a) against unreasonable harassment, intimidation, annoyance, expense and prejudice. 19. The protective reliefUGP seek is not in any manner unusual or extracidiñser. Courts routinely vacate deposition notices when presented with evidence showing the deponent does not have knowledge or thattheir testimony will have no evidentiary value. See e.g.Melohn v. Beard, 167 A.D.2d 174 (1stDep't 1990); Davis v. Cornerstone Telephone Co., LLC, 78 A.D.3d 1263 (3d Dep't 2010); Janian v. Barnes, 2 4 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 A.D.3d 1033 (3d Dep't 2003). 20. For instance, in 21st Century Advantage Insurance Company v. Pedro Cabral,et al.,Supreme Court, Nassau County, Index No. 12683/11, the Honorable Steven M. Jaegar found that the pinintiff insurance carrierwas not entitled to a deposition of certain defendant medical providers because the insurance carrier could not demonstrate how the testimony of the medical providers was material and necessary to determining whether the motor vehicle accidents at issue were staged events. Furthermore, Judge Jaegar providers' held that the sought after EBTs were improper and thus the medical abjecticñ to the EBTs was not untimely. 21. Similarly here, itispatent that a deposition of UGP will not lead to material and necessary evidence relating to the circumstances surrounding the accident or the alleged IME no-shows (as they were not parties to same) and cannot provide indepcñdcat testimony as to those issues that are not already in Plaintiffs possession. Moreover, with respect to the allegation that UGP substted claims for services rendered by indepeñdeñt contractor, UGP categorically denies the allegations. Indeed, the claims submitted by UGP set forth the exact individuals who performed the medical services at issue here, thus leaving no doubt as to this issue. -- 22. In a matter very similar to the one before this Court, the Appellate Term 2d Judicial Department held that "In the instant case, defendant cross-moved for summary judgmcat disMssing the cemplaint based accident" upon a "staged defense . .. Moreover, as defendant has not shown how a doctor, who was not alleged to have been at the scene of the accident, would have relevant information regarding the staging of an accident, the deposition and discovery demands of plaintif ordered by the Civil Court were palpably ." improper . . . Flatlands Med., P.C. v. Allstate Ins.Co., 35 Misc 3d 127(A) (App. Term, 2d Dep't, 2012) (emphasis added). This Court likewise should reach the same conclusion. 23. Itis well recognized that the failure to demonstrate that discovery will lead to evidence not currently in the Plaintiffs possession isgrounds for a protective order. See Kobre v. United Jewish Appeal- granting Federation of Jewish Philanthropies of New York, Inc., 288 A.D.2d 157 (IstDep't 2001) ("The grant of a protective order against deposition of certain additional witnesses sought by plaintiffs was within the 5 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 discretion of the motion court, since plaints)fsfailed to demonstrate that such witnesses possessed any information not previously made available to them.") (emphasis added); Wolin v. St.Vincent's Hosp. and Medied Center of New York, 304 A.D.2d 348 (1st Dep't 2003). The situation in this case is similar to the situation in both Kobre and Wolin. 24. Here, Plaintiff cannot demonstrate that UGP's testimony will reveal addinonal evidence that isnot already in the Plaintiffs possession. Importantly, the Plaintiff has refused to provide UGP with itsspecial investigation unit file or with an individual who has personal knowledge pertaining to any investigation of the accident. Presumptively, Plaintiff commenced this action secure in the knowledge that itis in possession of all material and necessary evidence and information relating to the accident to determine whether the assigners were involved in a real collision or satained real injuries and whether IMEs were properly held, and the claimmt did not appear. It ispatent that such information is both material and necessary to UGP's defense of the case at bar,who were neither parties to the IMEs nor have any knowledge pertaining to how the accident occurred. 25. Addidonally, itwas Plaintiff,and parties retaiñcd by Plaintiff, who were responsible for cañdüeting an invesdganon of the subject accidêñt, and, as such, any information relating to same isexclusively within the Plaintiff's control. See American Tr. Ins. Co. v. Jaga Med. Servs., P.C., 2015 NY Slip Op 03925 (1st Dep't 2015). 26. In light of the fact that UGP possess no relevant kñ0wicdge and any material and necessary information concerning the Plaintiffs claims, and a deposition willnot reveal any evidence not already in the Plaintiffs possession that will assistthe Plaintiff in theprosecution of thisaction, the Court should grant the instant motion for a protective order. PLAINTIFF'S APPLICATION TO COMPEL DISCOVERY 27. CPLR § 3101 requires fulldisclosure of all matters material and necessary in the prosecution or necessary," defense of an action. Disclosure of "all matter material and is to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparanon for prolixity." trialby sharpening the issues and reducing delay and See Allen v. Crowell-Collier Publ. Co., 21 6 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 . N.Y.2d 403, 406 (1968); Osowaki v. AMEC Constr. Mgt., Inc.,69 A.D.3d 99, 106 (1st Dep't 2009). As set forth in Allen, whether a particular item is material and necessary and thus the proper subject of reason." discovery is subject to a testof "usefulness and Allen v. Crowell-Collier Publ. Co. at 406. 28. The gravamen of the Complaint isthat coverage under the subject insurance policies isnot available here because the accident was purportedly the product of an intentional collision. 29. Importantly, although due request was made, Plaintiff has failed to provide UGP with a number of discovery documents, in particular the Plaintiffs Special Investigations Unit ("SIU") file pertaining to the accident at issue here, as well as the Plaintiffs claim file,which would provide information concerning the Plaintiffs handling of the claims at issue. 30. Plaintiff has made no reeañingful attempt to provide UGP with the requested discovery and instead has seemingly taken the position that itwill ignore UGP's demands for production of dccureent discovery that were served simultaneously with UGP's Answer. In a good faith effort to resolve this discovery dispute, UGP requested thatPlaintiff provide discovery responses to the ountanding demañds. A true copy of UGP's good faith correspondmce is annexed hereto as Exhibit "C". 31. In the instant matter, itis clear that discovery of the SIU files and claim filespertaining to the subject accident is absolutely vital here as virtually allof the allegatians of the Caraplaint are based on a putative investigation conducted by Plaintiff. Therefore, UGP are entitled to discovery ccaccrñing this investigation so that the basis for Plaintiff's anegations may be uncovered. Without access to this itis impossible for UGP to challenge the of the Plaintiff's and self- information, simply veracity conclusory serving allegations concerning the accident at issue and the resultant claims process. 32. This Court has the authority to order production of Plaintiff's SIU fileand claim file,and the right to saneden a failure to do so under CPLR R. 3124 which provides that"if a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under thisarticle,except a notice response." to admit under section 3123, the party seeking disele=ze may move to compel compliance or a Plaintif here issuch a person. 7 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 33. In addition, "a party served with a discovery notice has fivedays to move for a protective order. Where a notice for discovery has not been complied with, a party may proceed under CPLR 3124 to obtain an order to compel disclosure. In the alternative, the party may proceed under CPLR 3126 to,inter alia, testifyisig." preclude certain witnesses from Greuling v. Breakey, 391 N.Y.S.2d 585 (1st Dep't 1977). ." Moreover, "[I]fa party elects to ignore a notice for discovery and inspection, he does so at his peril.. . 34. "An order to compel disclosure is the proper vehicle to invoke when a party fails to respond to or Rules." comply with any request or demand made pursuant to article31 of the Civil Practice Law and MD Imaging, P.C. v. Progressive Northern Ins. Co., 866 N.Y.S.2d 857 (NY City Ct.,Poughkeepsie, 2008). 35. As the Plaintiff failed to move for a protective order, UGP became entitled to make the instant motion and are entitled to the relief they seek. 36. The party asserting that a document is exempt from diadnaure based upon a privilege bears the burden of demonstrating that the material itseeks to withhold is imm'me from discovery. See Bombard v. Arnica Mutual Insurance Cp., 11 AD3d 647, 647, 783 NYS2d 85, 86 (2d Dep't 2004) (citing Koump v. Smith, 25 NY2d 287, 294, 303 NYS2d 856, 864 (1969). 37. While, in the abstract, a party asserting privilege may meet their Bombard v. Arnica Mutual Insurance Co., burden by "identifying the particular material with respect to which the privilege is asserted litigation." and estabhshing with specificity that the material was prepared exclusively in anticipation of Bombard, supra (citing Chakmakjian v. NYRAC, Inc., 154 A.D.2d 644 (2d Dep't 1989), multi-motivated reports or documents prepared in the ordinary course of business or investigation, such as the SlU filehere, are not privileged. 38. The S1U filein issue was prepared in the course of the claims investigation of the subject incident in the ordinary course of business and, at the least,is a multi-motivated report that is therefore not privileged. See Bombard, supra, Landmark Insurance Co. v. Beau Rivage Restaurant, Inc., 121 A.D.2d 98,102 (2d Dep't 1986) ("mixed purpose reports are not exempt from disclosure under CPLR §3101(d)"). 8 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 39. In Landmark, the plaintiff employed an independent adjuster and arson expert because the plaintiff had substatial bona fide reasons to investigate the legitimacy of a claimed loss since the police and fire officialshad considered the fireto be suspicious in origin. The Landmark court stated that "here itis readily apparent that the plaintiff empicÿed the adjuster and the arson expert to conduct an investigation for the purpose of aiding it to decide whether to accept or reject the defendant's claim and not solely for the litigation." purpose of preparing for possible li (emphasis added); see also Hawley v. Travelers Iñdemnity Co., 90 A.D.2d 684 (4th Dep't 1982) (party "failed to show that the report was created exclusively in preparation for litigation. Mixed purpose reports are not exempt from disclosure under paragraph 2 of subdivision (d) of CPLR 3101"). 40. In the case at bar, the SIU file is inarguably the type of report prepared in connection with a loss process" which "aids in the of deciding which course of action to take and, therefore, ismade in the regular course of business. See Bombard and Landmark, supra. 41. This is a business decision, not a litigation support device. Ithas been widely held that reports by insurance investigators, adjusters, or attorneys before the decision is made to pay or rejecta claim are not privileged and are discoverable. See Bertalo's Restaurant. Inc.,240 A.D.2d at 454; see also JR Stevenson accountants' Corp v. Dormitory Authority of New York, 112 A.D.2d 113, 119 (1st Dep't 1985) ("the reports represent an independent verification by the surety of the obligor's claims ...As such they were records business" prepared in the ordinary course of and do not qualify for privilege); Westhampton Adult Home, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 105 A.D.2d 627 (1st Dep't 1984); Geneva Mortg. Corp. v. Certain Underwriters at Lloyd's, London, 14 Misc.3d 1233(A) (N.Y. Sup., 2006); Melworm v. Encompass Indem. Co., 37 Misc.3d 389 (N.Y. Sup., 2012). 42. The SIU fileisone which was prepared to conduct a detailed and Objective evaluation and analysis of the subject accident. No findings were made regarding the legal rights of any party or non-party. Thus, the cloak of privilege does not attach to such commimications. 43. Endeed, the Appellate Division, First Department has made clear recently that disclosure of the plaintiff'sclaim fileis an essential element necessary to oppose a motion for summary judgment. In 9 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 American Tr. Ins. Co. v. Jaga Med. Servs., P.C., 2015 NY Slip Op 03925 (1st Dep't 2015), the First Department found that "[fjurther discovery on plaintiffs han41ing of the claim so as to determiñe whether, inter opposition." alia, the EUOs were timely and properly requested is also essential to justify IA (Emphasis added). Moreover, "[t]he reason for the EUO request is a fact essential to justify opposition to plaintiffs summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup New movant." Ct, York County 2013]), and such fact isexclusively within the knevdedge and control of the (Emphasis added). 44. In the matter at bar, Plaintiff makes repeated, yet vague, reference to an investigation that it conducted of the subject accident. Presumably, the S1U filewould have details concerning this purported investigation and would disclose whether Plaintiff maintains a sufficient evidentiary basis to support belief" Plaintiffs "fe'mded that the accident was intentionally caused. 45. In order to ascertain the veracity and accuracy of Plaintiffs allegations, UGP made due demand for Plaintiff to produce to produce the contents of itsSIU filepertaining to thismatter in full. 46. In light of the foregoing, UGP respectfully request thatthis Court issue an Order directing Plaintiff to disclose the SIU file and claim filepertaining to the subject accidents and compel Plaintiff to present for Examination Before Trial a witness that has personal knowledge of the invesnganon conducted by Plaintiff of the subject accidents. WHEREFORE, UGP ACUPUNCTURE, P.C. requests that the Court grant the instant motion in itsentirety and for such other and furtherrelief as this Court deems just and proper. Dated: Brooklyn, New York Febmary 27, 2019 Respec lly submitted, Oleg Ryl/ak, Esq. The Rybak Firm, PLLC Attorneys for Certain Defendants 1810 Voorhies Avenue, Suite 7 Brooklyn, New York 11235 Telephone: (718) 975-2035 TO: GOLDBERG, MILLER & RUBIN 10 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 Attorneys for Plaintly 767 Third Avenue, 24th Floor New York, New York 10017 . 11 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------ -----------------------X UNITRIN ADVANTAGE INSURANCE COMPANY, Index No: 154804/17 Plaintiff AFFIDAVIT - against- ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., AUTO RX L.C., CITIMEDICAL I, PLLC, CORONA MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., EMA MEDICAL EQUIPMENT CORP., FAST CARE MEDICAL DIAGNOSTICS, PLLC, FRANK S. SEGRETO, M.D., HEALTH BALANCE MEDICAL., P.C., SATYA DRUG CORP. d/b/a FARMACIA CENTRAL, UGP ACUPUNCTURE, P.C., DWANYE CORWISE and ANGELA SALGUEDO, Defendants. _______ __ ____---------------------- ______ ------X STATE OF NEW YORK ) ) SS: COUNTY OF KINGS ) The undersigned, Lyadmra bd to o ,0wneandP1nc1Pai UGP ACUPUNCTURE, P.C., being duly sworn does hereby depose and say under the penalties of perjury that: 1. I am principal and owner of defendant UGP ACUPUNCTURE, P.C. ("UGP") in thisaction and as such, I have the requisite first-hand detailed knowledge of the factspertaining to this action. 2. I make this affidavit in support of the instant motion seeking a protective order preventing Plaintiff from taking the deposition of UGP and to set forth the extent of my personal knowledge concerning the underlying subject motor vehicle accident that occurred on May 9, 2016, for which Plaintiff seeks to disclaim coverage based on the assertion that UGP's assignor ANGELA SALGUEDO allegedly failed to appear for indqêñdent medical examinations ("IMEs") and the erroneous contention that UGP utilized the services of independent contractors in connection with the subject claims. Plaintifffurther cêñtêüds that the accident was intentionally caused, but does not set forth any factual basis in order to support this 12 of 16 FILED: NEW YORK COUNTY CLERK 04/10/2019 02:50 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/10/2019 allegation. I can personally attest that based on my examination and treatment of the claimants, they suffered significant injuries stemming from the subject motor vehicle accident. 3. This affidavit is based on my review of the Plaintiffs Complaint and the notes and patient files maintained by my office pertaining to the claiumuts, who are also named as defendants in this action. 4. Having reviewed the said documents, I can state that I have no personal knowledge concerning the circumstances of how the subject motor vehicle accident occurred or the intent of the individuals who were involved in the accident. 5. The extent of my knowledge pertaining to this action is that I provided certain medical treatment to the claimants, who presented to my office complaining of pain as a result of the subject accident. 6. I did not discuss with any of the claimants how the accident occun·ed, nor did they themselves provide me with that information. Based on my examination of the patients, I have assessed that they sustained legitimate injuries that required medical treatment and that the pain they were complaining of would be alleviated by proper acupuncture treatment. 7. I provided the patients with all necessary and proper acupuncture treatmcut that was warranted given their injuries and my office timely and properly submitted claims for reimbrdsement for the said patients' treatment to Plaintiff. with claim I provided Plaintiff of Along my forms, with true copies the medical records that relate to the treatment that was rendered to the patient. Thus, Plaintiff is well aware of the services that I provided in connection with this motor vehicle accident, the dates those services were rendered, and the amounts billed. 8. At no point during the claims process, or any time thereafter, did Plaintiff object to the of necessity the medical services or the propriety of the claim forms. Plaintiff further did not seek additional verification in connection with the submitted claim forms