Exhibit,Appendix: Rashbi Management, Inc. v. Diamond Hill Nursing And Rehabilitation Center Nka Collar City Nursing And Rehabilitation Center, Oriska Insurance Company

On October 21, 2022 a Exhibit,Appendix was filed involving a dispute between Rashbi Management, Inc., and Diamond Hill Nursing And Rehabilitation Center Nka Collar City Nursing And Rehabilitation Center, Oriska Insurance Company, for Other Matters - Workers Comp App for Judgment in the District Court of Albany County.

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FILED: ALBANY COUNTY CLERK 03/17/2023
01/17/2023 10:26
05:29 AM
PM INDEX NO. 908063-22
NYSCEF DOC. NO. 61
11 RECEIVED NYSCEF: 03/17/2023
01/17/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY

RASHBI MANAGEMENT, INC.,

Plaintiff, Index Number: 908063-22

-against- ANSWER TO COMPLAINT

DIAMOND HILL NURSING AND
REHABILITATION CENTER nka COLLAR CITY
NURSING AND REHABILITATION CENTER,
ORISKA INSURANCE COMPANY,

Defendants.

ANSWER TO COMPLAINT

Defendant Diamond Hill Nursing and Rehabilitation Center nka Collar City Nursing and

Rehabilitation Center, (“Defendant”), as and for its answer to plaintiff Rashbi Management, Inc.’s

(“Rashbi” or “Plaintiff”) Complaint, responds as follows:

1. Denies the allegations contained in paragraph 1 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

2. Denies the allegations contained in paragraph 2 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

3. Denies the allegations contained in paragraph 3 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

4. Denies the allegations contained in paragraph 4 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

5. Denies the allegations contained in paragraph 5 of the Complaint and avers that it

has paid all amounts due.

6. Denies the allegations contained in paragraph 6 of the Complaint.

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7. Denies the allegations contained in paragraph 7 of the Complaint.

8. Denies the allegations contained in paragraph 8 of the Complaint.

9. Denies the allegations contained in paragraph 9 of the Complaint.

10. Denies the allegations contained in paragraph 10 of the Complaint.

11. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 11 of the Complaint.

12. Denies the allegations contained in paragraph 12 of the Complaint, except admits

that Defendant Diamond Hill Nursing and Rehabilitation Center nka Collar City Nursing and

Rehabilitation Center, does business in the State of New York and has a principal place of business

at 100 New Turnpike Road, Troy, NY 12182.

13. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 13 of the Complaint.

14. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 14 of the Complaint.

15. Paragraph 15 states a legal conclusion as to which no response is required. To the

extent that a response is required, Defendant denies the allegations in paragraph 15 of the

Complaint.

16. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 16 of the Complaint.

17. Denies the allegations contained in paragraph 17 of the Complaint and refers the

Court to the referenced policy, which speaks for itself.

18. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 18 of the Complaint.

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19. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 19 of the Complaint.

20. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 20 of the Complaint.

21. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 21 of the Complaint.

22. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 22 of the Complaint.

23. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 23 of the Complaint.

24. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 24 of the Complaint.

25. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 25 of the Complaint.

26. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 26 of the Complaint.

27. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 27 of the Complaint.

28. Denies the allegations contained in paragraph 28 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

29. Denies the allegations contained in paragraph 29 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

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30. Denies the allegations contained in paragraph 30 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

31. Denies the allegations contained in paragraph 31 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

32. Denies the allegations contained in paragraph 32 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

33. Denies the allegations contained in paragraph 33 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

34. Denies the allegations contained in paragraph 34 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

35. Denies the allegations contained in paragraph 35 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

36. Denies the allegations contained in paragraph 36 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

37. Denies the allegations contained in paragraph 37 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

38. Denies the allegations contained in paragraph 38 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

39. Denies the allegations contained in paragraph 39 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

40. Denies the allegations contained in paragraph 40 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

41. Denies the allegations contained in paragraph 41 of the Complaint.

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42. Denies the allegations contained in paragraph 42 of the Complaint.

43. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 43 of the Complaint.

44. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations in paragraph 44 of the Complaint.

45. Denies the allegations contained in paragraph 45 of the Complaint.

46. Denies the allegations contained in paragraph 46 of the Complaint.

47. Denies the allegations contained in paragraph 47 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

48. Denies the allegations contained in paragraph 48 of the Complaint.

49. Denies the allegations contained in paragraph 49 of the Complaint.

50. Denies the allegations contained in paragraph 50 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

51. Denies the allegations contained in paragraph 51 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

52. Denies the allegations contained in paragraph 52 of the Complaint and refers the

Court to the Stipulation of Settlement, which speaks for itself.

53. Denies the allegations contained in paragraph 53 of the Complaint.

54. Denies the allegations contained in paragraph 54 of the Complaint.

55. Denies the allegations contained in paragraph 55 of the Complaint.

56. Denies the allegations contained in paragraph 56 of the Complaint.

57. Denies the allegations contained in paragraph 57 of the Complaint.

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58. Defendant restates and incorporates by reference its answers to paragraphs 1

through 57 as if fully set forth herein.

59. Denies the allegations contained in paragraph 59 of the Complaint.

60. Defendant restates and incorporates by reference its answers to paragraphs 1

through 59 as if fully set forth herein.

61. Denies the allegations contained in paragraph 61 of the Complaint.

62. Defendant restates and incorporates by reference its answers to paragraphs 1

through 61 as if fully set forth herein.

63. Denies the allegations contained in paragraph 63 of the Complaint.

64. Defendant restates and incorporates by reference its answers to paragraphs 1

through 63 as if fully set forth herein.

65. Denies the allegations contained in paragraph 65 of the Complaint.

66. Defendant restates and incorporates by reference its answers to paragraphs 1

through 65 as if fully set forth herein.

67. Denies the allegations contained in paragraph 67 of the Complaint.

68. Defendant restates and incorporates by reference its answers to paragraphs 1

through 67 as if fully set forth herein.

69. Denies the allegations contained in paragraph 69 of the Complaint.

70. Defendant restates and incorporates by reference its answers to paragraphs 1

through 69 as if fully set forth herein.

71. Denies the allegations contained in paragraph 71 of the Complaint.

72. Defendant restates and incorporates by reference its answers to paragraphs 1

through 71 as if fully set forth herein.

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FILED: ALBANY COUNTY CLERK 03/17/2023
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73. Denies the allegations contained in paragraph 73 of the Complaint.

74. Defendant restates and incorporates by reference its answers to paragraphs 1

through 73 as if fully set forth herein.

75. Denies the allegations contained in paragraph 75 of the Complaint.

76. Defendant restates and incorporates by reference its answers to paragraphs 1

through 75 as if fully set forth herein.

77. Denies the allegations contained in paragraph 77 of the Complaint.

78. All allegations that are not admitted, above, are hereby explicitly denied.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)

79. Plaintiff has failed to state a cause of action upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)

80. Plaintiff’s claims are barred, in whole or in part, by the applicable statute of

limitations.

81. Plaintiff asserts that Defendant breached certain agreements.

82. The statute of limitations for breach of contract is six years.

83. Any claim for a breach of the agreements that occurred more than six years ago is

barred by the statute of limitations.

THIRD AFFIRMATIVE DEFENSE
(Contractual Limitations Period)

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84. Each of the policies of insurance issued by Oriska Insurance Company (“Oriska”)

to Defendant contains a contractual limitation on the time permitted to conduct a policy audit.

85. To the extent that Plaintiff asserts a right to audit Defendant, it is barred by the

contractual limitations period.

FOURTH AFFIRMATIVE DEFENSE
(Release)

86. Plaintiff’s claims are barred, in whole or in part, by a release contained in the

Stipulation of Settlement dated September 24, 2013 between the parties.

FIFTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)

87. Plaintiff’s claims are barred by the doctrine of accord and satisfaction.

SIXTH AFFIRMATIVE DEFENSE
(Novation)

88. Plaintiff’s claims are barred by the doctrine of novation.

SEVENTH AFFIRMATIVE DEFENSE
(Waiver)

89. Plaintiff’s claims are barred by the doctrine of waiver.

EIGHTH AFFIRMATIVE DEFENSE
(Res Judicata)

90. Plaintiff’s claims are barred by the doctrine of res judicata.

91. In 2018, Oriska Insurance Company (“Oriska”) sued Defendant for allegedly

unpaid premiums in Oneida County (the “2018 Action”),.

92. The 2018 Action was dismissed with prejudice.

93. In 2017, Oriska sued Defendant for allegedly unpaid premiums in Oneida County

(the “2017 Action”).

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94. Defendant was awarded summary judgment in the 2017 Action, dismissing that

action with prejudice.

95. In Oriska Insurance Company v. Absolut Center for Nursing and Rehabilitation at

Allegany, Index No. EFCA2020-001276 (Oneida County) (the “2020 Action”), Oriska sued

Defendant for allegedly unpaid amounts owed under the Stipulation of Settlement.

96. The 2020 Action was dismissed with prejudice.

97. As a result of the 2017 Action, 2018 Action, and 2020 Action, as well as related

and similar actions brought by Oriska against its insureds, Oriska is barred by res judicata from

suing Defendant for allegedly unpaid premiums, and is barred from suing Defendant for allegedly

unpaid amounts owed under the Stipulation of Settlement.

98. Plaintiff stands in privity with Oriska Insurance Company.

99. As such, Plaintiff is also barred by res judicata from suing Defendant for allegedly

unpaid premiums, and is barred from suing Defendant for allegedly unpaid amounts owed under

the Stipulation of Settlement.

NINTH AFFIRMATIVE DEFENSE
(Collateral Estoppel)

100. Plaintiff’s claims are barred by the doctrine of collateral estoppel.

101. As a result of the decisions in the 2017 Action, 2018 Action, and 2020 Action, as

well as related and similar actions brought by Oriska against its insureds, Plaintiff is estopped from

denying that Defendant paid all amounts owed.

102. As a result of the decisions in the 2017 Action, 2018 Action, and 2020 Action, as

well as related and similar actions brought by Oriska against its insureds, Oriska is estopped from

denying that Defendant paid all amounts owed.

TENTH AFFIRMATIVE DEFENSE

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(Estoppel)

103. Plaintiff’s claims are barred by the doctrine of estoppel.

ELEVENTH AFFIRMATIVE DEFENSE
(Incorrect Calculations)

104. Plaintiff has miscalculated the amounts (if any) owed by Defendant.

105. Defendant is only liable for the actual amount owed (if any) under the governing

agreements.

TWELFTH AFFIRMATIVE DEFENSE
(Contractual Terms)

106. Plaintiff has sued alleging that it is entitled to reimbursement for specific claims

under the Stipulation of Settlement.

107. The Stipulation of Settlement does not obligate Defendant to reimburse either

Plaintiff or Oriska for specific claims.

108. Accordingly, Plaintiff is not entitled to relief that it seeks from Defendant.

THIRTEENTH AFFIRMATIVE DEFENSE
(Unclean Hands)

109. Plaintiff’s claims are barred by its own unclean hands.

FOURTEENTH AFFIRMATIVE DEFENSE
(Offset)

110. Any amounts that Defendant allegedly owes to Plaintiff, must be offset by the

amounts owed by Plaintiff and/or Oriska to Defendant.

FIFTEENTH AFFIRMATIVE DEFENSE
(Illegality)

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111. Plaintiff is barred by the doctrine of illegality from pursuing its claims against

Defendant, as the insurance policies at issue were issued in violation of an order from the New

York State Department of Financial Services.

112. Plaintiff is barred by the doctrine of illegality from pursuing its claims against

Defendant, as the Stipulation of Settlement is and/or was inextricably intertwined with policies

that were issued illegally in violation of an order from the New York State Department of Financial

Services.

SIXTEENTH AFFIRMATIVE DEFENSE
(Conversion)
113. Plaintiff seeks reimbursement for expenses that it alleges have not been covered by

Defendant’s prior payments.

114. Any amounts unavailable or insufficient to pay existing claims are a result of

Plaintiff, or its’ officers, directors, members, or principals’, mismanagement of funds.

115. Any amounts unavailable or insufficient to pay existing claims are a result of

Plaintiff, or its’ officers, directors, employees, members, or principals’ misappropriation of funds.

116. Any amounts unavailable or insufficient to pay existing claims are a result of

Plaintiff, or its’ officers, directors, employees, members, or principals’ theft of funds.

117. Any amounts unavailable or insufficient to pay existing claims are a result of self-

dealing by Plaintiff’s officers, directors, employees, members, or principals.

SEVENTEENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
118. Plaintiff is barred from pursuing its claims because it lacks standing and/or legal

capacity to sue.

EIGHTEENTH AFFIRMATIVE DEFENSE
(Failure to Perform Under Contract)

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119. Plaintiff is barred from suing Defendant for breach of contract because Plaintiff

never performed all of its obligations under the Stipulation of Settlement.

WHEREFORE, Defendant Diamond Hill Nursing and Rehabilitation Center nka Collar

City Nursing and Rehabilitation Center requests that the Court grant relief and judgment as

follows:

a. Dismissing Rashbi’s Complaint; and

b. Granting such other and further relief as the Court may deem just and proper.

Dated: Kew Gardens, New York
January 17, 2023

LIPSIUS-BENHAIM LAW LLP
Attorneys for Defendant Diamond Hill Nursing
and Rehabilitation Center nka Collar City
Nursing and Rehabilitation Center

By: _______________________________
Ira S. Lipsius
Alexander J. Sperber
80-02 Kew Gardens Road, Suite 1030
Kew Gardens, New York 11415
Telephone: 212-981-8440
Facsimile: 888-442-0284
ilipsius@lipsiuslaw.com
asperber@lipsiuslaw.com

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Case Info

Judge

Peter A Lynch Track Judge’s New Case

Case No.

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Document Filed Date

March 17, 2023

Case Filing Date

October 21, 2022

County

Parties

BUCKEY, CHRISTOPHER EDWARD Attorney for the Defendant
CHORBA, TIMOTHY ALOYSIUS Attorney for the Defendant
Diamond Hill Nursing and Rehabilitation Center NKA Collar City Nursing And Rehabilitation Center Defendant
FASO, NICHOLAS JOHN Attorney for the Defendant
LIPSIUS, IRA S Attorney for the Defendant
Oriska Insurance Company Defendant
POLICELLI, FRANK Attorney for the Plaintiff
Rashbi Management, Inc. Plaintiff
USINGER, ELIZABETH Attorney for the Defendant
ALEXANDER SPERBER Attorneys for Defendants
James Kernan Attorney
BARRY FEERST Attorney
DAVID ARPINO Attorneys for Defendants
EMIL ROSSI Attorneys for Defendants
MICHAEL GALLAGHER Attorneys for Defendants
MICHAEL PAPA Attorney
EPHRAIM SAVITT Attorney
REPHOEL WEITZNER Attorney
DANIEL HULSIZER Attorneys for Plaintiffs
JESSICA SPRAGUE Attorneys for Plaintiffs
JON POWERS Attorneys for Defendants
KEVIN HARRINGTON Attorneys for Defendants
Robert Burns Attorney

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Exhibit,Appendix: Rashbi Management, Inc. v. Diamond Hill Nursing And Rehabilitation Center Nka Collar City Nursing And Rehabilitation Center, Oriska Insurance Company

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