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FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
____________________________________________....___x
PROGRESSIVE CASUALTY INSURANCE COMPANY,
Index No: 614797/2023
Plaintiffs,
- against -
ANSWER
KEVIN S. VASQUEZ CHACON AKA KEVIN VASQUEZ
CHACÇN O C ER p 4 VIVIAN¾RITA
FUENTES AKA VIVIAN F ARITA FUENTES AKA VIVIAN
FUENTES AKA ARITA ADONY CERRATO-
GISELLE,
VILLADERES AKA ADONY F CERRATO VALLADARES
AKA ADONY CERRATO,
(Collectively, the "Individual Defendants"),
-and-
ACE MED SUPPLIES INC., ALL CITY FAMILY
HEALTHCARE CENTER, INC., BMM LIFE ESSENTIAL
SERVICES INC., CENTURION MIDTOWN MEDICAL, PLLC,
CHAYIM MED PRODUCTS CORP., CHIROPRACTIC
EVALUATION SERVICE, P.C., DR MANASHEROV MEDICAL
PC, FAMILY RX CORP, FIFTH AVENUE SURGERY CENTER,
LLC, FLEX MED SUPPLY INC, FUTURE CARE INTERNAL
MEDICINE, GAETAN JEAN MARIE, FAMILY HEALTH NP,
PLLC, GET WELL RX INC., GLOBAL ORTHO, INC., H.
LEVITAN MEDICAL P.C., HEALTH WELLNESS MEDICAL
SERVICES PLLC, HERSCHEL KOTKES, M.D., P.C., JUAN D
DELACRUZ MD, KAMM MED SUPPLIES INC., LAKE SHORE
CHIROPRACTIC P.C., MEDEX SUPPLIES INC., MEDICAL
MRI P.C., MEDICUS SUPPLY CORP., MEDISOURCE
MEDICAL INC., MULTIWAVE DIAGNOSTICS. INC., N AND J
HOME CARE, INC., NEW ARENA PT, P.C., OPAQUE NY,
INC., ORTHO CHOICE, INC., PULSE MED SUPPLY CORP.,
RANA UNITED, INC., RIDGEWOOD DRUG INC.,
ROCKAWAYS ASC
DEVELOPMENT, LLC, SEDATION
VACATION PERIOPERATIVE MEDIC1NE PLLC, STAR
MEDICAL IMAGING P.C., STORY AVE PHARMACY INC
D/B/A 99 CENTS AND UP, TIMOTHY J HENDERSON, M.D.,
TRIBOROUGH ASC, LLC, and VIOTEK MED SUPPLIES, INC.,
(Collectively, the "Individual Defen dants"),
Collectively the Defendants.
_____________________________________x
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Defendants, ALL CITY FAMILY HEALTHCARE CENTER INC., ROCKAWAYS ASC
DEVELOPMENT, LLC, ("Answering Defendants,"), by its attorneys The Rybak Firm, PLLC, as and
for its Answer to the Complaint ("Complaint") herein respectfully allege as follows:
1. Answering Defendants, denies knowledge or information sufficient to form a belief as to
the allegations contained in paragraphs 1 to 120 of the Complaint.
. . . ANSWERING THE FIRST CAUSE OF ACTION .
2. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the
Complaint as set forth in paragraph 121 of the Complaint, Answering Defendants, repeat, reiterate and re-
allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat.
3. The allegations contained in paragraphs 122 to 129 of the Complaint are essentially
nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a
denial; however, to the extent that such allegations are offered for the truth thereof, they are denied.
ANSWERING THE SECOND CAUSE OF ACTION
4. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the
Complaint as set forth in paragraphs 130 of the Complaint, Answering Defendants, repeat, reiterate and
re-allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat.
5. The allegations contained in paragraphs 131 to 137 of the Complaint are essentially
nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a
denial; however, to the extent that such allegations are offered for the truth thereof, they are denied.
ANSWERING THE THIRD CAUSE OF ACTION
6. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the
Complaint as set forth in paragraphs 138 of the Complaint, Answering Defendants, repeat, reiterate and
re-allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat.
7. The allegations contained in paragraphs 139 to 144 of the Complaint are essentially
nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a
denial; however, to the extent that such allegations are offered for the truth thereof, they are denied.
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ANSWERING THE FOURTH CAUSE OF ACTION
8. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the
Complaint as set forth in paragraphs 145 of the Complaint, Answering Defendants, repeat, reiterate and
re-allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat.
.. . a.x. 9. . e The -allegations...contained in paragraphs 146 to451 ofi e Complaint. are nessentially
nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a
denial; however, to the extent that such allegations are offered for the truth thereof, they are denied.
AND AS FOR A FIRST AFFIRMATIVE DEFENSE
10, Plaintiff's complaint fails to state a claim or cause of action against Answering
Defendants, or any of them, upon which relief can be granted and is thus fatally defective.
AND AS FOR A SECOND AFFIRMATIVE DEFENSE
11. Service of process upon Answering Defendants, or one or more of them were not made in
accordance with New York's Civil Practice Law and Rules, accordingly the Court lacks personal
jurisdiction over Answering Defendants,
AND AS FOR A THIRD AFFIRMATIVE DEFENSE
12. Plaintiff lacks standing and/or capacity to bring this claim against Answering Defendants,
or any of them.
AND AS FOR A FOURTH AFFIRMATIVE DEFENSE
13. Plaintiff failed to timely apprise Answering Defendants, of any Examination(s) Under
Oath ("EUO") that Plaintiff allegedly wished to conduct of assignors and Answering Defendants,
pursuant to 1 1 NYCRR §§ 65-3.5(b), 65-3.5(d), and 65-3.6(b).
14. Plaintiff failed to properly apprise Answering Defendants, of any Examination(s) Under
Oath that Plaintiff allegedly wished to conduct, in that the second EUO request/verification request was
not properly made upon the Defendants attorney, pursuant to 11 NYCRR § 65-3.6.
AND AS FOR A FIFTH AFFIRMATIVE DEFENSE
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15. Plaintiff never properly apprised Answering Defendants, of the time(s), place(s) and
in which the Under Oath were to transpire pursuant to 11 NYCRR 65-
date(s) Examination(s) going
3.5(e). The time(s) and place(s) of the Examination(s) Under Oath were improper pursuant to 11 NYCRR
65-3.5(e).
AND AS FOR A SIXTH AFFIRMATIVE DEFENSE
. . .. 16r. . The policy .in questions possesses×no. provision that permits Plaintiff to aconduct.an .
Examination(s) Under Oath for the reasons put forth in Plaintiffs Complaint.
AND AS FOR AN SEVENTH AFFIRMATIVE DEFENSE
17. Plaintiffs alleged notice for Examination(s) Under Oath was improper pursuant to New
York State Insurance Department Opinion Letter (OGC No. 9-06-10).
AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE
cause"
18. Plaintiff did not and does not possess "good to demand any Examination(s) Under
Oath of assignors and Answering Defendants,
AND AS FOR A NINTH AFFIRMATIVE DEFENSE
19. Plaintiff did not properly mail any correspondence pertaining to an Examination(s) Under
Oath to assignors or Answering Defendants, nor can Plaintiff prove such.
AND AS FOR A TENTH AFFIRMATIVE DEFENSE
20. An Examination(s) Under Oath of assignors or Answering Defendants, nor any
information that may have been gained from such Examination(s) Under Oath, is not "material or
necessary"
to the claims at issue. The document demanded contained in Plaintiff's Examination(s) Under
Oath letters to Answering Defendants, were essentially a demand for pre-action discovery regarding a
Mallela defense. CPLR § 3102(c) permits pre-action discovery only by court order and only to aid in
bringing an action. Some of the documentation requested in the Examination(s) Under Oath letters
Plaintiff might not be able to obtain even if it had been requested in a duly served notice for discovery and
inspection.
AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE
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21. Neither assignors nor Answering Defendants, engaged in any manner tantamount to
"non-cooperation,"
nor can Plaintiff establish willful or avowed failure to comply with plaintiff's
insurance policy or that the efforts of the Plaintiff were reasonably calculated to obtain the Answering
Defendants, co-operation.
AND AS FOR AN TWELFTH AFFIRMATIVE DEFENSE
. . . . 22. ..,Plaintiffsi..denial(s). of to the claims at..issue regarding.
claims,..NF-10(s)epertaining
Answering Defendants, are invalid and fatally defective as they were issued prior to its receipt of
verification of all of the relevant information requested, pursuant to 11 N.Y.C.R.R. § 65-3.8(b)(3). Since
Examination(s) Under Oath is a form of verification, the denial(s) of claim form(s) are based on failure to
appear for the Examination(s) Under Oath, the action must only be dismissed without prejudice for
failure to comply with Plaintiff's verification request(s).
AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs'
23. denial(s) of claims form(s), ("NF-10"), pertaining to the claims at issue
regarding Answering Defendants, or any of them are legally insufficient and fatally defective as they are
blanket, facially defective, untimely and omit requisite information.
AND AS FOR AN FOURTEENTH AFFIRMATIVE DEFENSE
24. Plaintiff's NF-10s pertaining to the claims at issue regarding Answering Defendants, or
any of them are invalid and fatally defective as they contain incorrect information regarding the claim(s)
at issue or the reason for denial.
AND AS FOR AN FIFTEENTH AFFIRMATIVE DEFENSE
25. Plaintiff's NF-10s pertaining to the claims at issue regarding Answering Defendants, are
invalid and fatally defective, as they were not issued on the proper, prescribed New York No-Fault NF-10
Forms.
AND AS FOR AN SIXTEENTH AFFIRMATIVE DEFENSE
26. The collision in question was and is a covered incident under the subject Policy.
AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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27. Answering Defendants, have filed actions in Civil Court of the City of New York, Kings
County prior to the present declaratory action being filed.
28. arguendo that the Complaint or any of its causes of action give rise to a claim -
Assuming
- which do not -- Plaintiff has adequate remedies at law, no basis for equitable
they and, accordingly,
relief exists.
..e. .... . ...... AND-AS FORAEIGHTEENTH,AFFIRMATIVE DEFENSE ..
29. The claims contained in the Complaint are barred by the common law, decisional law,
statutes of the State of New York and as well as by Rules and Regulations promulgated thereunder and
accordingly no relief may be granted thereon.
AND AS FOR A NINETEENTH AFFIRMATIVE DEFENSE
30. Plaintiff is a foreign corporation organized and existing under the laws of states other
than New York.
31. Plaintiff alleges that it does business in the State of New York although it does not allege
that it is, or ever was, licensed or authorized to do so.
32. A foreign corporation doing business in New York that has not been authorized is barred
from maintaining an action in New York unless and until it has been so authorized and made payment of
closing"
the requisite fees and taxes. NYBCL § 1312 (New York "door statute).
33. The Court lacks subject matter jurisdiction over actions brought by unauthorized foreign
corporations.
AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE
34. By suing for a declaration of rights in an action where there are adequate remedies under
New York State's No-Fault insurance coverage statutes, rules and regulations for any alleged improper
conduct on the part of any of the Answering Defendants, and where proof of performance by Plaintiff of
the conditions precedent to establish entitlement for any relief is lacking, Plaintiff is merely seeking an
advisory opinion.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
35. Plaintiff has improperly designated the venue for this action.
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AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
36. Pursuant to the statutory and regulatory framework governing the payment of no-fault
automobile insurance benefits, insurance companies are required to either pay or denies a claim for
. benefits withirL30.days of receipt-of the claim. .
37. Plaintiff is barred from making this claim because of the failure of Plaintiff to timely
comply with all the New York Insurance Laws and Rules and Regulations promulgated thereunder.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
38. The alleged causes of action, or one or more of them, are barred by the doctrine of accord
and satisfaction.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
39. Plaintiff is barred from disclaiming liability under the doctrine of latches and equitable
estoppels.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
40. That in the event any judgment or verdict is rendered in favor of Plaintiff, the Answering
Defendants, are entitled to have such judgment or verdict reduced by the amounts of any collateral
payments.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
41. The injuries, if any, alleged to have been sustained by Plaintiff were caused, in whole or
in part by the culpable conduct of plaintiff.
42. Liability between plaintiff and Answering Defendants, and other Defendants, should be
apportioned at trial.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
43. Plaintiff has failed to properly commence this action.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
44. Plaintiff has willfully exaggerated all possible damages.
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AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
45. Necessary and proper parties have not been included as parties to this action.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
46. In order to induce Answering Defendants, to provide the necessary medical services to
injured persons, Plaintiff issued an insurance policy referred to in the Complaint and Plaintiff stated in its
policysthat itmould cover "any occupants of the insured.vehicle for any medical.necessary and casually .
related medical expenses suffered while riding in the insured vehicles as a result of an accidental
collision."
47. The statements and representations made by the Plaintiff were false, misleading and
fraudulent and were known by the plaintiff to be false, misleading and fraudulent when made.
48. In truth and in fact, Plaintiff could not and would not pay for medically necessary,
appropriate, adequate and timely billed medical services, thus failing to fulfill its obligations under the
agreement.
49. Answering Defendants, did not know the truth with regard to such statements and
representations, but believed them to be true and relied upon them and were thereby induced by the
statements, actions and representations of the plaintiff to perform medically necessary, appropriate and
adequate medical services to the injured persons and timely submitted their bills.
50. Answering Defendants, would not have performed medically necessary, appropriate and
adequate medical services to the injured persons and submitted bills to Plaintiff had they known the truth
with regard tosuch statements, actions and representations by plaintiff.
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
51, Plaintiff has willfully and inexcusably failed to comply with New York Insurance Law
and Rules and Regulations promulgated thereunder and breached the agreed upon insurance coverage by
failing to provided compensation and reimbursement for all incurred first-party no-fault benefits in
accordance with the statute, rules and regulations promulgated thereunder and the terms of the agreement.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
52. Plaintiff will be unjustly enriched.
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AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
53. Plaintiffs damages, if any, are the result of its own fraudulent and defective insurance
underwriting, accident verification and investigation practices.
.e.-AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE . . .
54. There are other prior actions pending relating to the same cause of action.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
55. Plaintiff was and still is obligated to provide first-party no-fault benefits to Answering
Defendants, for rendered medical services that are due and still remain outstanding.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
56. Plaintiff failed to verify information in the submitted bills within the statutory period and
therefore is precluded &om raising any defenses that were not properly raised in a timely and proper
denial.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
57. Plaintiff failed to pleaded with sufficient particularity all of the elements of fraud.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
58. Final judgment(s) on the merits have issued out of a court or courts of competent
jurisdiction in favor of one or more Defendants, in a previous action or actions, in which identical claims
to those asserted in the Complaint herein were or could have been raised that share a common nucleus of
operative fact with the claims at bar, and in which the parties were identical and, accordingly, the plaintiff
is precluded from raising claims which were raised in, or could have been raised, that lawsuit.
59. The claims and causes of action set forth in the Complaint are therefore barred under the
doctrine of res judicata.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
60. This action or one or more of the causes of action set forth in the Complaint are time
barred.
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AS AND FOR A FOURTIETH AFFIRMATIVE DEFENSE
61. To the extent any claim is moot or not ripe for adjudication, that claim must be dismissed.
AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
62. Answering Defendant(s) were entitled to priority of payment pursuant to 11 NYCRR 65
3.15.
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FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ____________________________________________....___x PROGRESSIVE CASUALTY INSURANCE COMPANY, Index No: 614797/2023 Plaintiffs, - against - ANSWER KEVIN S. VASQUEZ CHACON AKA KEVIN VASQUEZ CHACÇN O C ER p 4 VIVIAN¾RITA FUENTES AKA VIVIAN F ARITA FUENTES AKA VIVIAN FUENTES AKA ARITA ADONY CERRATO- GISELLE, VILLADERES AKA ADONY F CERRATO VALLADARES AKA ADONY CERRATO, (Collectively, the "Individual Defendants"), -and- ACE MED SUPPLIES INC., ALL CITY FAMILY HEALTHCARE CENTER, INC., BMM LIFE ESSENTIAL SERVICES INC., CENTURION MIDTOWN MEDICAL, PLLC, CHAYIM MED PRODUCTS CORP., CHIROPRACTIC EVALUATION SERVICE, P.C., DR MANASHEROV MEDICAL PC, FAMILY RX CORP, FIFTH AVENUE SURGERY CENTER, LLC, FLEX MED SUPPLY INC, FUTURE CARE INTERNAL MEDICINE, GAETAN JEAN MARIE, FAMILY HEALTH NP, PLLC, GET WELL RX INC., GLOBAL ORTHO, INC., H. LEVITAN MEDICAL P.C., HEALTH WELLNESS MEDICAL SERVICES PLLC, HERSCHEL KOTKES, M.D., P.C., JUAN D DELACRUZ MD, KAMM MED SUPPLIES INC., LAKE SHORE CHIROPRACTIC P.C., MEDEX SUPPLIES INC., MEDICAL MRI P.C., MEDICUS SUPPLY CORP., MEDISOURCE MEDICAL INC., MULTIWAVE DIAGNOSTICS. INC., N AND J HOME CARE, INC., NEW ARENA PT, P.C., OPAQUE NY, INC., ORTHO CHOICE, INC., PULSE MED SUPPLY CORP., RANA UNITED, INC., RIDGEWOOD DRUG INC., ROCKAWAYS ASC DEVELOPMENT, LLC, SEDATION VACATION PERIOPERATIVE MEDIC1NE PLLC, STAR MEDICAL IMAGING P.C., STORY AVE PHARMACY INC D/B/A 99 CENTS AND UP, TIMOTHY J HENDERSON, M.D., TRIBOROUGH ASC, LLC, and VIOTEK MED SUPPLIES, INC., (Collectively, the "Individual Defen dants"), Collectively the Defendants. _____________________________________x 1 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 Defendants, ALL CITY FAMILY HEALTHCARE CENTER INC., ROCKAWAYS ASC DEVELOPMENT, LLC, ("Answering Defendants,"), by its attorneys The Rybak Firm, PLLC, as and for its Answer to the Complaint ("Complaint") herein respectfully allege as follows: 1. Answering Defendants, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1 to 120 of the Complaint. . . . ANSWERING THE FIRST CAUSE OF ACTION . 2. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the Complaint as set forth in paragraph 121 of the Complaint, Answering Defendants, repeat, reiterate and re- allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat. 3. The allegations contained in paragraphs 122 to 129 of the Complaint are essentially nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a denial; however, to the extent that such allegations are offered for the truth thereof, they are denied. ANSWERING THE SECOND CAUSE OF ACTION 4. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the Complaint as set forth in paragraphs 130 of the Complaint, Answering Defendants, repeat, reiterate and re-allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat. 5. The allegations contained in paragraphs 131 to 137 of the Complaint are essentially nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a denial; however, to the extent that such allegations are offered for the truth thereof, they are denied. ANSWERING THE THIRD CAUSE OF ACTION 6. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the Complaint as set forth in paragraphs 138 of the Complaint, Answering Defendants, repeat, reiterate and re-allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat. 7. The allegations contained in paragraphs 139 to 144 of the Complaint are essentially nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a denial; however, to the extent that such allegations are offered for the truth thereof, they are denied. 2 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 ANSWERING THE FOURTH CAUSE OF ACTION 8. To the extent that Plaintiff repeats, reiterates and re-alleges prior allegations of the Complaint as set forth in paragraphs 145 of the Complaint, Answering Defendants, repeat, reiterate and re-allege each and every admission, denial and allegation set forth hereinabove as if fully set forth hereat. .. . a.x. 9. . e The -allegations...contained in paragraphs 146 to451 ofi e Complaint. are nessentially nothing more than a conclusion of law and fact and, accordingly, require neither an admission nor a denial; however, to the extent that such allegations are offered for the truth thereof, they are denied. AND AS FOR A FIRST AFFIRMATIVE DEFENSE 10, Plaintiff's complaint fails to state a claim or cause of action against Answering Defendants, or any of them, upon which relief can be granted and is thus fatally defective. AND AS FOR A SECOND AFFIRMATIVE DEFENSE 11. Service of process upon Answering Defendants, or one or more of them were not made in accordance with New York's Civil Practice Law and Rules, accordingly the Court lacks personal jurisdiction over Answering Defendants, AND AS FOR A THIRD AFFIRMATIVE DEFENSE 12. Plaintiff lacks standing and/or capacity to bring this claim against Answering Defendants, or any of them. AND AS FOR A FOURTH AFFIRMATIVE DEFENSE 13. Plaintiff failed to timely apprise Answering Defendants, of any Examination(s) Under Oath ("EUO") that Plaintiff allegedly wished to conduct of assignors and Answering Defendants, pursuant to 1 1 NYCRR §§ 65-3.5(b), 65-3.5(d), and 65-3.6(b). 14. Plaintiff failed to properly apprise Answering Defendants, of any Examination(s) Under Oath that Plaintiff allegedly wished to conduct, in that the second EUO request/verification request was not properly made upon the Defendants attorney, pursuant to 11 NYCRR § 65-3.6. AND AS FOR A FIFTH AFFIRMATIVE DEFENSE 3 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 15. Plaintiff never properly apprised Answering Defendants, of the time(s), place(s) and in which the Under Oath were to transpire pursuant to 11 NYCRR 65- date(s) Examination(s) going 3.5(e). The time(s) and place(s) of the Examination(s) Under Oath were improper pursuant to 11 NYCRR 65-3.5(e). AND AS FOR A SIXTH AFFIRMATIVE DEFENSE . . .. 16r. . The policy .in questions possesses×no. provision that permits Plaintiff to aconduct.an . Examination(s) Under Oath for the reasons put forth in Plaintiffs Complaint. AND AS FOR AN SEVENTH AFFIRMATIVE DEFENSE 17. Plaintiffs alleged notice for Examination(s) Under Oath was improper pursuant to New York State Insurance Department Opinion Letter (OGC No. 9-06-10). AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE cause" 18. Plaintiff did not and does not possess "good to demand any Examination(s) Under Oath of assignors and Answering Defendants, AND AS FOR A NINTH AFFIRMATIVE DEFENSE 19. Plaintiff did not properly mail any correspondence pertaining to an Examination(s) Under Oath to assignors or Answering Defendants, nor can Plaintiff prove such. AND AS FOR A TENTH AFFIRMATIVE DEFENSE 20. An Examination(s) Under Oath of assignors or Answering Defendants, nor any information that may have been gained from such Examination(s) Under Oath, is not "material or necessary" to the claims at issue. The document demanded contained in Plaintiff's Examination(s) Under Oath letters to Answering Defendants, were essentially a demand for pre-action discovery regarding a Mallela defense. CPLR § 3102(c) permits pre-action discovery only by court order and only to aid in bringing an action. Some of the documentation requested in the Examination(s) Under Oath letters Plaintiff might not be able to obtain even if it had been requested in a duly served notice for discovery and inspection. AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE 4 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 21. Neither assignors nor Answering Defendants, engaged in any manner tantamount to "non-cooperation," nor can Plaintiff establish willful or avowed failure to comply with plaintiff's insurance policy or that the efforts of the Plaintiff were reasonably calculated to obtain the Answering Defendants, co-operation. AND AS FOR AN TWELFTH AFFIRMATIVE DEFENSE . . . . 22. ..,Plaintiffsi..denial(s). of to the claims at..issue regarding. claims,..NF-10(s)epertaining Answering Defendants, are invalid and fatally defective as they were issued prior to its receipt of verification of all of the relevant information requested, pursuant to 11 N.Y.C.R.R. § 65-3.8(b)(3). Since Examination(s) Under Oath is a form of verification, the denial(s) of claim form(s) are based on failure to appear for the Examination(s) Under Oath, the action must only be dismissed without prejudice for failure to comply with Plaintiff's verification request(s). AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs' 23. denial(s) of claims form(s), ("NF-10"), pertaining to the claims at issue regarding Answering Defendants, or any of them are legally insufficient and fatally defective as they are blanket, facially defective, untimely and omit requisite information. AND AS FOR AN FOURTEENTH AFFIRMATIVE DEFENSE 24. Plaintiff's NF-10s pertaining to the claims at issue regarding Answering Defendants, or any of them are invalid and fatally defective as they contain incorrect information regarding the claim(s) at issue or the reason for denial. AND AS FOR AN FIFTEENTH AFFIRMATIVE DEFENSE 25. Plaintiff's NF-10s pertaining to the claims at issue regarding Answering Defendants, are invalid and fatally defective, as they were not issued on the proper, prescribed New York No-Fault NF-10 Forms. AND AS FOR AN SIXTEENTH AFFIRMATIVE DEFENSE 26. The collision in question was and is a covered incident under the subject Policy. AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 5 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 27. Answering Defendants, have filed actions in Civil Court of the City of New York, Kings County prior to the present declaratory action being filed. 28. arguendo that the Complaint or any of its causes of action give rise to a claim - Assuming - which do not -- Plaintiff has adequate remedies at law, no basis for equitable they and, accordingly, relief exists. ..e. .... . ...... AND-AS FORAEIGHTEENTH,AFFIRMATIVE DEFENSE .. 29. The claims contained in the Complaint are barred by the common law, decisional law, statutes of the State of New York and as well as by Rules and Regulations promulgated thereunder and accordingly no relief may be granted thereon. AND AS FOR A NINETEENTH AFFIRMATIVE DEFENSE 30. Plaintiff is a foreign corporation organized and existing under the laws of states other than New York. 31. Plaintiff alleges that it does business in the State of New York although it does not allege that it is, or ever was, licensed or authorized to do so. 32. A foreign corporation doing business in New York that has not been authorized is barred from maintaining an action in New York unless and until it has been so authorized and made payment of closing" the requisite fees and taxes. NYBCL § 1312 (New York "door statute). 33. The Court lacks subject matter jurisdiction over actions brought by unauthorized foreign corporations. AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE 34. By suing for a declaration of rights in an action where there are adequate remedies under New York State's No-Fault insurance coverage statutes, rules and regulations for any alleged improper conduct on the part of any of the Answering Defendants, and where proof of performance by Plaintiff of the conditions precedent to establish entitlement for any relief is lacking, Plaintiff is merely seeking an advisory opinion. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 35. Plaintiff has improperly designated the venue for this action. 6 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 36. Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile insurance benefits, insurance companies are required to either pay or denies a claim for . benefits withirL30.days of receipt-of the claim. . 37. Plaintiff is barred from making this claim because of the failure of Plaintiff to timely comply with all the New York Insurance Laws and Rules and Regulations promulgated thereunder. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 38. The alleged causes of action, or one or more of them, are barred by the doctrine of accord and satisfaction. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 39. Plaintiff is barred from disclaiming liability under the doctrine of latches and equitable estoppels. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 40. That in the event any judgment or verdict is rendered in favor of Plaintiff, the Answering Defendants, are entitled to have such judgment or verdict reduced by the amounts of any collateral payments. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 41. The injuries, if any, alleged to have been sustained by Plaintiff were caused, in whole or in part by the culpable conduct of plaintiff. 42. Liability between plaintiff and Answering Defendants, and other Defendants, should be apportioned at trial. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 43. Plaintiff has failed to properly commence this action. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 44. Plaintiff has willfully exaggerated all possible damages. 7 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 45. Necessary and proper parties have not been included as parties to this action. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 46. In order to induce Answering Defendants, to provide the necessary medical services to injured persons, Plaintiff issued an insurance policy referred to in the Complaint and Plaintiff stated in its policysthat itmould cover "any occupants of the insured.vehicle for any medical.necessary and casually . related medical expenses suffered while riding in the insured vehicles as a result of an accidental collision." 47. The statements and representations made by the Plaintiff were false, misleading and fraudulent and were known by the plaintiff to be false, misleading and fraudulent when made. 48. In truth and in fact, Plaintiff could not and would not pay for medically necessary, appropriate, adequate and timely billed medical services, thus failing to fulfill its obligations under the agreement. 49. Answering Defendants, did not know the truth with regard to such statements and representations, but believed them to be true and relied upon them and were thereby induced by the statements, actions and representations of the plaintiff to perform medically necessary, appropriate and adequate medical services to the injured persons and timely submitted their bills. 50. Answering Defendants, would not have performed medically necessary, appropriate and adequate medical services to the injured persons and submitted bills to Plaintiff had they known the truth with regard tosuch statements, actions and representations by plaintiff. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 51, Plaintiff has willfully and inexcusably failed to comply with New York Insurance Law and Rules and Regulations promulgated thereunder and breached the agreed upon insurance coverage by failing to provided compensation and reimbursement for all incurred first-party no-fault benefits in accordance with the statute, rules and regulations promulgated thereunder and the terms of the agreement. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 52. Plaintiff will be unjustly enriched. 8 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 53. Plaintiffs damages, if any, are the result of its own fraudulent and defective insurance underwriting, accident verification and investigation practices. .e.-AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE . . . 54. There are other prior actions pending relating to the same cause of action. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 55. Plaintiff was and still is obligated to provide first-party no-fault benefits to Answering Defendants, for rendered medical services that are due and still remain outstanding. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 56. Plaintiff failed to verify information in the submitted bills within the statutory period and therefore is precluded &om raising any defenses that were not properly raised in a timely and proper denial. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 57. Plaintiff failed to pleaded with sufficient particularity all of the elements of fraud. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 58. Final judgment(s) on the merits have issued out of a court or courts of competent jurisdiction in favor of one or more Defendants, in a previous action or actions, in which identical claims to those asserted in the Complaint herein were or could have been raised that share a common nucleus of operative fact with the claims at bar, and in which the parties were identical and, accordingly, the plaintiff is precluded from raising claims which were raised in, or could have been raised, that lawsuit. 59. The claims and causes of action set forth in the Complaint are therefore barred under the doctrine of res judicata. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 60. This action or one or more of the causes of action set forth in the Complaint are time barred. 9 of 13 FILED: NASSAU COUNTY CLERK 10/10/2023 03:37 PM INDEX NO. 614797/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/10/2023 AS AND FOR A FOURTIETH AFFIRMATIVE DEFENSE 61. To the extent any claim is moot or not ripe for adjudication, that claim must be dismissed. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 62. Answering Defendant(s) were entitled to priority of payment pursuant to 11 NYCRR 65 3.15.