Preview
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
UNITRIN ADVANTAGE INSURANCE COMPANY, Index No.: 154804/2017
Plaintiff, NOTICE 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., DWAYNE CORWISE and
ANGELA SALGUEDO,
Defendants.
---- X
PLEASE TAKE NOTICE that upon annexed affirmation of Timothy R. Bishop,
the affirmation of Harlan R. affirmed to the 30th of
Esq., Schreiber, Esq., day May, 2019,
the affirmation of Joseph affirmed to the 28th of the
Margulies, M.D., day March, 2018,
affirmation of Joseph affirmed to the 30th of the affidavit
Stubel, M.D., day March, 2018,
of Walter sworn to the 31st of the affidavit of Denise
Distler, day January, 2019, Winant,
sworn to the 21st of and the exhibits annexed and upon all
day February, 2019, thereto,
the prior pleadings and proceedings had herein, the plaintiff will move this Court
located at 60 Centre Street, New York, New York 10007, at an IAS part, Room 130, on
the 3rd of at 9:30 a.m. or as soon thereafter as can be heard for an Order:
day July, 2019,
- pursuant to CPLR § 3212, against defendants
Granting summary judgment,
ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., CORONA
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP
ACUPUNCTURE, P.C., and
- For such other and further relief as this Court deems just and proper.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR § 2214, answering
papers, if any, are required to be served upon the undersigned no later than seven days
prior to the return date of this motion.
TO: FULD & KARP, P.C.
Attorneys for defendant
ABA CHIROPRACTIC, P.C.
APPLE
ACUPUNCTURE, P.C.
CORONA MEDICAL PLAZA, P.C.
ELMONT REHAB PT, P.C.
1963 Coney Island Avenue
Brooklyn, New York 11223
THE RYBAK FIRM PLLC
Attorneys for defendant
UGP ACUPUNCTURE, P.C.
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
Dated: New York, New York
June 3, 2019
Yours etc.,
GOLDBER , LL & RUBIN, P.C.
By:
Timothy R. Bishop, Esq.
60 E. 42nd St, Suite 520
New York, New York 10165
(646) 863-1531
Attorneys for Plaintiff
File No.: KE.00542
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
UNITRIN ADVANTAGE INSURANCE COMPANY, Index No.: 154804/2017
Plaintiff, AFFIRMATION
-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., DWAYNE CORWISE and
ANGELA SALGUEDO,
Defendants.
TIMOTHY R. BISHOP, an attorney duly admitted to practice law in the State of
New York, hereby affirms the following to be true under the penalties of
perjury as
provided by CPLR § 2106:
1. I am an associate at the law firm of Goldberg, Miller & Rubin, P.C., attorneys for
plaintiff Unitrin Advantage Insurance Company ("Unitrin"). As such, I am fully
familiar with the facts and circumstances of this case based upon a review of the file
maintained by my firm's office.
2. I submit this affirmation in support of Unitrin's motion seeking summary
judgment pursuant to CPLR § 3212 on the first and third cause of action against
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
defendants ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., CORONA
MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP ACUPUNCTURE, P.C.
3. As will be explained below, Unitrin is entitled to summary judgment on the first
cause of action because defendant-claimant ANGELA SALGUEDO ("SALGUEDO")
breached a condition precedent to coverage under the No-Fault Regulations by failing
to appear at a properly scheduled independent medical examination ("IME") on two
occasions, and on the third cause of action because defendant-claimant DWAYNE
CORWISE breached a condition precedent to coverage under the No-
("CORWISE")
Fault Regulations by failing to subscribe and return his examination under oath
transcript.1
("EUO")
FACTUALBACKGROUND
4. In this action, Unitrin, an automobile insurer, seeks a declaration that it has no
obligation to provide No-Fault coverage for the collision referenced in the complaint.
5. On May 9, 2016, defendants CORWISE and SALGUEDO (collectively, "the
Claimants") were occupants of a motor vehicle insured by Unitrin when it was
involved in a collision at the intersection of Vandoren Street and Horace
allegedly
Harding Expressway in Queens, New York.
According to the police report, CORWISE,
who was driving the insured vehicle, stated that as he was slowing down to exit the
expressway, the insured vehicle was struck by the adverse vehicle. The adverse driver
¹
Unitrin also asserted a second, fourth, fifth, sixth, seventh, and eighth cause of action seeking to disclaim
coverage based on numerous vie!etions of the No-Fault Regulations. Unitrin does not seek summary judgment on
those causes of action at this time, and if this motion is granted, Unitrin will discontinue those claims as moot.
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
told police that the insured vehicle slowed down suddenly, causing the adverse vehicle
to hit the insured vehicle. The police report indicates that there was minimal damage to
both vehicles and both vehicles were drivable from the scene. The police report further
indicates that the occupants of both vehicles reported no injuries at the scene, were not
injured, and declined medical attention. See police report annexed as Exhibit
visibly
"A".
6. Despite these circumstances, the Claimants later reported to have sustained
extensive bodily injuries from the collision, and Unitrin assigned claim number
Claimants'
CO29968NY16 to all claims relating to the May 9, 2016 collision. See NF-2s
with letters of representation annexed as Exhibit "B".
7. Unitrin then started receiving numerous claims from defendants ABA
CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., AUTO RX, L.C., CITIMEDICAL
I, PLLC, CORONA MED1CAL 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, and UGP ACUPUNCTURE, P.C. (collectively,
the "Medical Provider Defendants") seeking to recover No-Fault benefits as the alleged
assignees of the Claimants.
8. To date, the Medical Provider Defendants have submitted over $27,000 in bills
for No-Fault treatment provided to the Claimants.
allegedly
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
9. In addition to the sheer magnitude of the claims submitted, the collision raised
questions of coverage because:
- The insurance became effective less than six weeks prior to the accident.
policy
- The collision was minor and both vehicles were able to be driven from the
away
scene, yet the Claimants were serious injuries were caused the collision.
alleging by
- its initial investigation into the Unitrin learned that there was a
During loss,
very high likelihood that the insured, CORWISE, made material misrepresentations in
procuring the insurance policy.
- CORWISE gave inconsistent addresses to the police and to Unitrin.
- The Claimants received and mirror treatments from the
excessive, boilerplate,
same group of medical providers.
DEFENDANTS'
VIOLATIONS OF THE NO-FAULT REGULATIONS
10. Based on these factors and pursuant to the No-Fault Regulations, Unitrin sought
an IME of the Claimants to confirm the legitimacy of this loss and the necessity of any
alleged treatment and referrals.
11. Despite due demand, SALGUEDO failed to appear at
properly scheduled IMEs
on two occasions, which violated a condition precedent to coverage under the No-Fault
Regulations, and Unitrin denied all No-Fault claims submitted on behalf of
SALGUEDO on that basis.
12. Unitrin, pursuant to its rights under the No-Fault Regulations, requested EUOs
of the Claimants to confirm the legitimacy of this loss and the of alleged
necessity any
treatment and referrals.
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
13. The Claimants appeared for their EUOs, but their testimonies contained many
inaccuracies and inconsistencies that led Unitrin to conclude that the loss
underlying
was not an insured event and/or that the treatments the Claimants received from the
Medical Provider Defendants was unnecessary, excessive, and abusive of the No-Fault
system. Most notably:
- SALGUEDO testified that she was in the insured vehicle because CORWISE
saw her walking in the neighborhood and told her to take a ride with him. CORWISE
into"
testified that he "ran SALGUEDO on the street and she agreed to come with him
"Caesar."
to Brooklyn, where he was meeting He further testified that he does not
know Caesar's real name or phone number.
- CORWISE testified that the collision occurred while were on their to
they way
Caeser's house; however, SALGUEDO testified that the collision occurred while they
were driving home after leaving Caesar's.
- CORWISE testified that he underwent an MRI but was never given the results.
- CORWISE testified that he has been involved in three prior losses that resulted
in bodily injuries.
- SALGUEDO testified that she reported injuries at the which is
scene,
contradicted by the police report and CORWISE's testimony that she did not complain
of pain or injuries.
any
- The Claimants gave accounts of the aftermath of the collision.
conflicting
CORWISE testified that he had to wait for the insured vehicle to be towed from the
scene and that he saw SALGUEDO walk home before his car was towed. But this is
contradicted by the police report, which indicated that both vehicles were drivable, and
SALGUEDO's EUO testimony, in which she stated CORWISE drove her home in the
insured vehicle after the collision.
- SALGUEDO testified that she waited one week before medical
seeking any
treatment, even though she testified that she felt severe pain the day of the collision,
which itself contradicts her statement to police at the scene that she was not injured.
- SALGUEDO testified that she received treatment on her first which is
visit,
improper.
- SALGUEDO testified that the clinic provides free transportation to and from all
appointments.
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
- SALGUEDO testified that she learned of the medical from her
facility mother,
who is allegedly treating there in connection with a May 6, 2016 loss under suspiciously
similar circumstances. In addition, both the 6, 2016 loss and the 9, 2016 loss
May May
occurred within months of the policy's inception, respectively.
See EUO transcripts annexed as Exhibit "C".
14. After the EUO transcripts were received, the original and one copy of each were
forwarded to the Claimants, via their attorneys, for subscription.
15. Despite due demand, CORWISE failed to return a subscribed copy of his EUO
transcript, which violated a condition precedent to coverage under the No-Fault
Regulations, and Unitrin denied all claims submitted on behalf of CORWISE on that
basis.
16. Unitrin then initiated this action seeking to disclaim all No-Fault coverage
because, inter alia, SALGUEDO breached a condition precedent to coverage under the
No-Fault Regulations by failing to appear at properly scheduled IMEs on two occasions,
and CORWISE breached a condition precedent to coverage under the No-Fault
Regulations by failing to subscribe and return his EUO transcript. See summons and
complaint annexed as Exhibit "D".
17. Defendants ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C.,
CORONA MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP
ACUPUNCTURE, P.C. answered the complaint. See answers annexed as Exhibit "E".
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
18. Unitrin now motions for summary judgment on the first and third cause of
action against the ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C.,
CORONA MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP
ACUPUNCTURE, P.C.
UNITRIN IS ENTITLED TO SUMMARY GMENT ON THE FIRST AND THIRD
CAUSE OF ACTION
19. A party moving for summary judgment under CPLR § 3212 must demonstrate
that no triable issue of facts exists and that the undisputed facts prove it is entitled to
judgment as a matter of law. See Whelan v. GTE Sylvania Inc., 182 A.D.2d 446, 448 (N.Y.
1992) (citation omitted).
A. First Cause of Action- SALGUEDO's IME No-Shows
20. The No-Fault Regulations, 11 N.Y.C.R.R. § 65-1.1 et, seq., require that insurers
such as Unitrin provide No-Fault benefits to persons injured in the use or operation of
motor vehicles in New York State. But such coverage is subject to certain conditions.
See id. § 65-1.1 ("No action shall lie against the unless, as a condition
Company
precedent thereto, there shall have been full compliance with the terms of this
coverage.").
21. One condition is that "[t]he eligible injured person shall submit to medical
examination physicians selected by, or acceptable to, the Company, when, and as
by
require."
often as, the may Id. (emphasis added).
Company reasonably
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022
22. The insurer may deny the claim based on the nonappearance at two properly
scheduled IMEs. See Hertz Vehicles LLC v. Significant Care, PT, 157 A.D.3d 600, 600 (N.Y.
App. Div., 1st Dep't 2018) (citations omitted); Stephen Fogel Psychological, P.C. v.
Progressive Ins. Co., 35 A.D.3d 720, 722 (N.Y. App. Div., 2d Dep't 2006) ("an
Casualty
insurer a [No-Fault] claim to the date of loss for a claimant's
may deny retroactively
failure to attend IMEs").
23. An IME is properly scheduled if the first scheduling letter is mailed within 15
business days of a bill for that claimant. 11 N.Y.C.R.R. A follow-
receiving § 65-3.5(b).
up letter rescheduling the IME is timely if mailed within 10 days of the nonappearance.
Id. § 65-3.6(b).
i. ANGELA SALGUEDO breached a condition precedent to No-Fault
coverage failing to appear at two IMEs
by
Preview
FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X UNITRIN ADVANTAGE INSURANCE COMPANY, Index No.: 154804/2017 Plaintiff, NOTICE 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., DWAYNE CORWISE and ANGELA SALGUEDO, Defendants. ---- X PLEASE TAKE NOTICE that upon annexed affirmation of Timothy R. Bishop, the affirmation of Harlan R. affirmed to the 30th of Esq., Schreiber, Esq., day May, 2019, the affirmation of Joseph affirmed to the 28th of the Margulies, M.D., day March, 2018, affirmation of Joseph affirmed to the 30th of the affidavit Stubel, M.D., day March, 2018, of Walter sworn to the 31st of the affidavit of Denise Distler, day January, 2019, Winant, sworn to the 21st of and the exhibits annexed and upon all day February, 2019, thereto, the prior pleadings and proceedings had herein, the plaintiff will move this Court located at 60 Centre Street, New York, New York 10007, at an IAS part, Room 130, on the 3rd of at 9:30 a.m. or as soon thereafter as can be heard for an Order: day July, 2019, - pursuant to CPLR § 3212, against defendants Granting summary judgment, ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., CORONA FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP ACUPUNCTURE, P.C., and - For such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR § 2214, answering papers, if any, are required to be served upon the undersigned no later than seven days prior to the return date of this motion. TO: FULD & KARP, P.C. Attorneys for defendant ABA CHIROPRACTIC, P.C. APPLE ACUPUNCTURE, P.C. CORONA MEDICAL PLAZA, P.C. ELMONT REHAB PT, P.C. 1963 Coney Island Avenue Brooklyn, New York 11223 THE RYBAK FIRM PLLC Attorneys for defendant UGP ACUPUNCTURE, P.C. 1810 Voorhies Avenue, Suite 7 Brooklyn, New York 11235 Dated: New York, New York June 3, 2019 Yours etc., GOLDBER , LL & RUBIN, P.C. By: Timothy R. Bishop, Esq. 60 E. 42nd St, Suite 520 New York, New York 10165 (646) 863-1531 Attorneys for Plaintiff File No.: KE.00542 FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X UNITRIN ADVANTAGE INSURANCE COMPANY, Index No.: 154804/2017 Plaintiff, AFFIRMATION -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., DWAYNE CORWISE and ANGELA SALGUEDO, Defendants. TIMOTHY R. BISHOP, an attorney duly admitted to practice law in the State of New York, hereby affirms the following to be true under the penalties of perjury as provided by CPLR § 2106: 1. I am an associate at the law firm of Goldberg, Miller & Rubin, P.C., attorneys for plaintiff Unitrin Advantage Insurance Company ("Unitrin"). As such, I am fully familiar with the facts and circumstances of this case based upon a review of the file maintained by my firm's office. 2. I submit this affirmation in support of Unitrin's motion seeking summary judgment pursuant to CPLR § 3212 on the first and third cause of action against FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 defendants ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., CORONA MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP ACUPUNCTURE, P.C. 3. As will be explained below, Unitrin is entitled to summary judgment on the first cause of action because defendant-claimant ANGELA SALGUEDO ("SALGUEDO") breached a condition precedent to coverage under the No-Fault Regulations by failing to appear at a properly scheduled independent medical examination ("IME") on two occasions, and on the third cause of action because defendant-claimant DWAYNE CORWISE breached a condition precedent to coverage under the No- ("CORWISE") Fault Regulations by failing to subscribe and return his examination under oath transcript.1 ("EUO") FACTUALBACKGROUND 4. In this action, Unitrin, an automobile insurer, seeks a declaration that it has no obligation to provide No-Fault coverage for the collision referenced in the complaint. 5. On May 9, 2016, defendants CORWISE and SALGUEDO (collectively, "the Claimants") were occupants of a motor vehicle insured by Unitrin when it was involved in a collision at the intersection of Vandoren Street and Horace allegedly Harding Expressway in Queens, New York. According to the police report, CORWISE, who was driving the insured vehicle, stated that as he was slowing down to exit the expressway, the insured vehicle was struck by the adverse vehicle. The adverse driver ¹ Unitrin also asserted a second, fourth, fifth, sixth, seventh, and eighth cause of action seeking to disclaim coverage based on numerous vie!etions of the No-Fault Regulations. Unitrin does not seek summary judgment on those causes of action at this time, and if this motion is granted, Unitrin will discontinue those claims as moot. FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 told police that the insured vehicle slowed down suddenly, causing the adverse vehicle to hit the insured vehicle. The police report indicates that there was minimal damage to both vehicles and both vehicles were drivable from the scene. The police report further indicates that the occupants of both vehicles reported no injuries at the scene, were not injured, and declined medical attention. See police report annexed as Exhibit visibly "A". 6. Despite these circumstances, the Claimants later reported to have sustained extensive bodily injuries from the collision, and Unitrin assigned claim number Claimants' CO29968NY16 to all claims relating to the May 9, 2016 collision. See NF-2s with letters of representation annexed as Exhibit "B". 7. Unitrin then started receiving numerous claims from defendants ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., AUTO RX, L.C., CITIMEDICAL I, PLLC, CORONA MED1CAL 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, and UGP ACUPUNCTURE, P.C. (collectively, the "Medical Provider Defendants") seeking to recover No-Fault benefits as the alleged assignees of the Claimants. 8. To date, the Medical Provider Defendants have submitted over $27,000 in bills for No-Fault treatment provided to the Claimants. allegedly FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 9. In addition to the sheer magnitude of the claims submitted, the collision raised questions of coverage because: - The insurance became effective less than six weeks prior to the accident. policy - The collision was minor and both vehicles were able to be driven from the away scene, yet the Claimants were serious injuries were caused the collision. alleging by - its initial investigation into the Unitrin learned that there was a During loss, very high likelihood that the insured, CORWISE, made material misrepresentations in procuring the insurance policy. - CORWISE gave inconsistent addresses to the police and to Unitrin. - The Claimants received and mirror treatments from the excessive, boilerplate, same group of medical providers. DEFENDANTS' VIOLATIONS OF THE NO-FAULT REGULATIONS 10. Based on these factors and pursuant to the No-Fault Regulations, Unitrin sought an IME of the Claimants to confirm the legitimacy of this loss and the necessity of any alleged treatment and referrals. 11. Despite due demand, SALGUEDO failed to appear at properly scheduled IMEs on two occasions, which violated a condition precedent to coverage under the No-Fault Regulations, and Unitrin denied all No-Fault claims submitted on behalf of SALGUEDO on that basis. 12. Unitrin, pursuant to its rights under the No-Fault Regulations, requested EUOs of the Claimants to confirm the legitimacy of this loss and the of alleged necessity any treatment and referrals. FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 13. The Claimants appeared for their EUOs, but their testimonies contained many inaccuracies and inconsistencies that led Unitrin to conclude that the loss underlying was not an insured event and/or that the treatments the Claimants received from the Medical Provider Defendants was unnecessary, excessive, and abusive of the No-Fault system. Most notably: - SALGUEDO testified that she was in the insured vehicle because CORWISE saw her walking in the neighborhood and told her to take a ride with him. CORWISE into" testified that he "ran SALGUEDO on the street and she agreed to come with him "Caesar." to Brooklyn, where he was meeting He further testified that he does not know Caesar's real name or phone number. - CORWISE testified that the collision occurred while were on their to they way Caeser's house; however, SALGUEDO testified that the collision occurred while they were driving home after leaving Caesar's. - CORWISE testified that he underwent an MRI but was never given the results. - CORWISE testified that he has been involved in three prior losses that resulted in bodily injuries. - SALGUEDO testified that she reported injuries at the which is scene, contradicted by the police report and CORWISE's testimony that she did not complain of pain or injuries. any - The Claimants gave accounts of the aftermath of the collision. conflicting CORWISE testified that he had to wait for the insured vehicle to be towed from the scene and that he saw SALGUEDO walk home before his car was towed. But this is contradicted by the police report, which indicated that both vehicles were drivable, and SALGUEDO's EUO testimony, in which she stated CORWISE drove her home in the insured vehicle after the collision. - SALGUEDO testified that she waited one week before medical seeking any treatment, even though she testified that she felt severe pain the day of the collision, which itself contradicts her statement to police at the scene that she was not injured. - SALGUEDO testified that she received treatment on her first which is visit, improper. - SALGUEDO testified that the clinic provides free transportation to and from all appointments. FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 - SALGUEDO testified that she learned of the medical from her facility mother, who is allegedly treating there in connection with a May 6, 2016 loss under suspiciously similar circumstances. In addition, both the 6, 2016 loss and the 9, 2016 loss May May occurred within months of the policy's inception, respectively. See EUO transcripts annexed as Exhibit "C". 14. After the EUO transcripts were received, the original and one copy of each were forwarded to the Claimants, via their attorneys, for subscription. 15. Despite due demand, CORWISE failed to return a subscribed copy of his EUO transcript, which violated a condition precedent to coverage under the No-Fault Regulations, and Unitrin denied all claims submitted on behalf of CORWISE on that basis. 16. Unitrin then initiated this action seeking to disclaim all No-Fault coverage because, inter alia, SALGUEDO breached a condition precedent to coverage under the No-Fault Regulations by failing to appear at properly scheduled IMEs on two occasions, and CORWISE breached a condition precedent to coverage under the No-Fault Regulations by failing to subscribe and return his EUO transcript. See summons and complaint annexed as Exhibit "D". 17. Defendants ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., CORONA MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP ACUPUNCTURE, P.C. answered the complaint. See answers annexed as Exhibit "E". FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 18. Unitrin now motions for summary judgment on the first and third cause of action against the ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE, P.C., CORONA MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C., and UGP ACUPUNCTURE, P.C. UNITRIN IS ENTITLED TO SUMMARY GMENT ON THE FIRST AND THIRD CAUSE OF ACTION 19. A party moving for summary judgment under CPLR § 3212 must demonstrate that no triable issue of facts exists and that the undisputed facts prove it is entitled to judgment as a matter of law. See Whelan v. GTE Sylvania Inc., 182 A.D.2d 446, 448 (N.Y. 1992) (citation omitted). A. First Cause of Action- SALGUEDO's IME No-Shows 20. The No-Fault Regulations, 11 N.Y.C.R.R. § 65-1.1 et, seq., require that insurers such as Unitrin provide No-Fault benefits to persons injured in the use or operation of motor vehicles in New York State. But such coverage is subject to certain conditions. See id. § 65-1.1 ("No action shall lie against the unless, as a condition Company precedent thereto, there shall have been full compliance with the terms of this coverage."). 21. One condition is that "[t]he eligible injured person shall submit to medical examination physicians selected by, or acceptable to, the Company, when, and as by require." often as, the may Id. (emphasis added). Company reasonably FILED: NEW YORK COUNTY CLERK 01/06/2022 03:07 PM INDEX NO. 154804/2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 01/06/2022 22. The insurer may deny the claim based on the nonappearance at two properly scheduled IMEs. See Hertz Vehicles LLC v. Significant Care, PT, 157 A.D.3d 600, 600 (N.Y. App. Div., 1st Dep't 2018) (citations omitted); Stephen Fogel Psychological, P.C. v. Progressive Ins. Co., 35 A.D.3d 720, 722 (N.Y. App. Div., 2d Dep't 2006) ("an Casualty insurer a [No-Fault] claim to the date of loss for a claimant's may deny retroactively failure to attend IMEs"). 23. An IME is properly scheduled if the first scheduling letter is mailed within 15 business days of a bill for that claimant. 11 N.Y.C.R.R. A follow- receiving § 65-3.5(b). up letter rescheduling the IME is timely if mailed within 10 days of the nonappearance. Id. § 65-3.6(b). i. ANGELA SALGUEDO breached a condition precedent to No-Fault coverage failing to appear at two IMEs by