Complaint,Petition: Lm General Insurance Company v. Michelle Pinckney, Atlantic Medical & Diagnostic, P.C., Best Care Pharmacy Of New York Inc., Body Logics Rehab Pt P.C., Bv Physical Therapy P.C., Echenique Medical Office, P.C., Empire State Rehab P.T. P.C., Glenmore Medical P.C., Herschel Kotkes, M.D., P.C., Inspire Family Health Np, P.C., Jtk Chiropractic Care, P.C., Macintosh Medical, P.C., Nova Medical Diagnostic P.C., Pacem Psychological Services, P.C., Pretoria Medical Supply, Inc., Ridge Mobile Medical Pllc, Royal Care Pharmacy, Inc., Stand-Up Mri Of Bensonhurst, P.C., V& S Supply, Inc., Vaynshteyn Chiropractic P.C., Vish Supply Inc.

On April 29, 2024 a Complaint,Petition was filed involving a dispute between Lm General Insurance Company, and Atlantic Medical & Diagnostic, P.C., Best Care Pharmacy Of New York Inc., Body Logics Rehab Pt P.C., Bv Physical Therapy P.C., Echenique Medical Office, P.C., Empire State Rehab P.T. P.C., Glenmore Medical P.C., Herschel Kotkes, M.D., P.C., Inspire Family Health Np, P.C., Jtk Chiropractic Care, P.C., Macintosh Medical, P.C., Michelle Pinckney, Nova Medical Diagnostic P.C., Pacem Psychological Services, P.C., Pretoria Medical Supply, Inc., Ridge Mobile Medical Pllc, Royal Care Pharmacy, Inc., Stand-Up Mri Of Bensonhurst, P.C., Vaynshteyn Chiropractic P.C., Vish Supply Inc., V& S Supply, Inc., for Other Matters - Contract Non-Commercial in the District Court of Nassau County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
---------------------------------------------------------------------------X Index No.:
LM GENERAL INSURANCE COMPANY,
VERIFIED COMPLAINT
Plaintiff,
-against-

MICHELLE PINCKNEY,
(Individual Defendant)

ATLANTIC MEDICAL & DIAGNOSTIC, P.C.,
BEST CARE PHARMACY OF NEW YORK INC.,
BODY LOGICS REHAB PT P.C.,
BV PHYSICAL THERAPY P.C.,
ECHENIQUE MEDICAL OFFICE, P.C.,
EMPIRE STATE REHAB P.T. P.C.,
GLENMORE MEDICAL P.C.,
HERSCHEL KOTKES, M.D., P.C.,
INSPIRE FAMILY HEALTH NP, P.C.,
JTK CHIROPRACTIC CARE, P.C.,
MACINTOSH MEDICAL, P.C.,
NOVA MEDICAL DIAGNOSTIC P.C.,
PACEM PSYCHOLOGICAL SERVICES, P.C.,
PRETORIA MEDICAL SUPPLY, INC.,
RIDGE MOBILE MEDICAL PLLC,
ROYAL CARE PHARMACY, INC.,
STAND-UP MRI OF BENSONHURST, P.C.,
V& S SUPPLY, INC.,
VAYNSHTEYN CHIROPRACTIC P.C.,
VISH SUPPLY INC.,
(Healthcare Provider Defendants)

Defendants.
---------------------------------------------------------------------------X
VERIFIED COMPLAINT

Plaintiff, LM General Insurance Company (hereinafter referred to as “LM General” or

“Plaintiff”), by and through its attorneys, Callinan & Smith LLP, as and for their complaint against

the Defendants in this action, hereby alleges as follows upon information and belief:

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I. PRELIMINARY STATEMENT

1. This action seeks a Declaratory Judgment as to the rights and obligations of the

parties pursuant to CPLR §3001.

2. Michelle Pinckney (hereinafter the “Individual Defendant”) was reportedly

involved in an alleged automobile incident on June 13, 2022 (the “underlying incident”) and

allegedly sustained injuries for which they sought reimbursement under the personal injury

protection (“PIP” or “No-Fault”) coverage of the LM General policy of insurance under claim

number 050299919.

3. Atlantic Medical & Diagnostic, P.C., Best Care Pharmacy of New York Inc., Body

Logics Rehab PT P.C., BV Physical Therapy P.C., Echenique Medical Office, P.C., Empire State

P.T. P.C., Glenmore Medical P.C., Herschel Kotkes, M.D., P.C., Inspire Family Health NP, P.C.,

JTK Chiropractic Care, P.C., Macintosh Medical, P.C., Nova Medical Diagnostic P.C., Pacem

Psychological Services, P.C., Pretoria Medical Supply, Inc., Ridge Mobile Medical PLLC, Royal

Care Pharmacy, Inc., Stand-Up MRI of Bensonhurst, P.C., V&S Supply Inc., Vaynshteyn

Chiropractic P.C., and Vish Supply Inc., hereinafter collectively the “Healthcare Provider

Defendants”) are providers of healthcare services who provided medical treatment and/or medical

services and/or medical equipment to the Individuals allegedly injured in an alleged automobile

accident on June 13, 2022. The treatment allegedly rendered to the Individual Defendant

reportedly injured in the underlying automobile incident was done pursuant to the Insurance Law

and the No-Fault Regulations.

4. Prior to the rendition of the services, the Healthcare Provider Defendants obtained

from the Individual Defendant an Assignment of Benefits. The Assignment of Benefits transfers

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the right of repayment of No-Fault benefits from the Individuals s directly to the Healthcare

Provider Defendants.

5. After the rendition of healthcare services, the Healthcare Provider

Defendants submitted their bills for the services that were allegedly rendered, along with the

Assignment of Benefits, to LM General for reimbursement pursuant to the Insurance Law and the

No-Fault Regulation.

6. However, before the Individual Defendant or Healthcare Provider Defendants are

entitled to receive reimbursement for the services that were allegedly rendered, the insurance

carrier is entitled to obtain certain necessary information to verify the claim.

7. Further, in order to qualify to receive reimbursement, the Individual Defendant, as

well as the Healthcare Provider Defendants, must meet certain conditions precedent to coverage.

8. This action seeks a declaration that the Healthcare Provider Defendants are not

entitled to receive No-Fault reimbursements under claim number 050299919 as the Individual

Defendant failed to meet a critical condition precedent to coverage as set forth in the applicable

policy of insurance as well as the No-Fault Regulation by refusing to cooperate with LM General’s

investigation.

II. NATURE OF ACTION

9. The Individual Defendant, Michelle Pinckney failed to provide necessary and

reasonable verification requested during the course of LM General’s investigation or provide a

reasonable justification for their inability to comply with the requests for verification.

10. By refusing to cooperate, the Individual Defendant, Michelle Pinckney, failed to

meet a critical and material condition precedent to coverage and is a breach of 11 NYCRR §65-

3.8(b) as neither the requested documentation nor a reasonable justification for her failure to

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comply was received within one hundred twenty (120) calendar days from the date of the initial

verification request.

11. The verification requested of Michelle Pinckney was sought pursuant to the terms

and conditions of the LM General policy of insurance covering the incident of June 13, 2022, as

well as the PIP (No-Fault) Endorsement contained within said policy. Moreover, the No-Fault

Regulation as contained within 11 NYCRR 65-1.1, et seq. requires Michelle Pinckney to produce

any materials necessary in order to process the claim as a mandatory condition precedent to

coverage.

12. The Examination Under Oath (“EUO”) of the Individual Defendant was requested

pursuant to the terms and conditions of the applicable policy of insurance and the No-Fault

Regulation.

13. In failing to cooperate by not providing the requested verification as sought by LM

General, the Individual Defendant breached a material condition precedent to coverage under the

applicable insurance policy and No-Fault Regulation that negates Plaintiff’s obligation to honor

any bills submitted by the Individual Defendant and/or Healthcare Provider Defendants for

reimbursement pursuant to the Insurance Law and the No-Fault Regulation.

14. The Individual Defendant and Healthcare Provider Defendants are not entitled to

seek, keep or receive No-Fault reimbursements from LM General for the claims in which

verification was requested and for which the Individual Defendant refused to cooperate and/or

failed to provide the requested verification.

15. LM General is not obligated to pay reimbursements for any No-Fault related

matters pertaining to the claims in which the Individual Defendant unjustifiably failed to cooperate

by not providing the requested verification.

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16. As a result of the Individual Defendant’s refusal to cooperate by refusing to provide

the requested verification, said Individual Defendant and the Healthcare Provider Defendants have

no standing or legal right to seek or receive any No-Fault reimbursements from LM General for

the underlying incident.

17. Moreover, LM General is under no obligation to pay or honor any outstanding

claims for reimbursement that have been submitted by the Individual Defendant or Healthcare

Provider Defendants for the underlying incident.

18. Accordingly, due to the Individual Defendant’s failure to cooperate with LM

General’s investigation by not providing requested verification, LM General seeks the following

relief:

(a) On the First Cause of Action, a declaratory judgment pursuant to CPLR
§3001 that Individual Defendant, Michelle Pinckney, breached a material
condition precedent to coverage under the policy of insurance and No-Fault
Regulation by not cooperating with LM General Insurance Company’s
investigation by not providing the verification requested and that LM
General Insurance Company is not required to pay any sums, monies,
damages, awards and/or benefits to the Individual Defendant, Michelle
Pinckney, or the Healthcare Provider Defendants named herein, their
agents, employees, assignors and/or heirs arising out of any current or future
proceedings, including all uninsured/underinsured motorist lawsuits and
arbitrations, all No-Fault lawsuits and arbitration and all third-party lawsuits
and arbitrations arising out of the alleged incident of June 13, 2022 (claim
number 050299919);

(b) On the Second Cause of Action, a permanent injunction of all actions,
arbitrations or other proceedings commenced by, or on behalf of the named
Defendants against LM General Insurance Company or its insureds, to
recover payment of personal injury protection benefits,
uninsured/underinsured motorist and bodily injury benefits as a result of
motor vehicle incident of June 13, 2022 (claim number 050299919);

(d) For such other and further relief as this Court deems just, proper, and
equitable.

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III. THE PARTIES

A. Plaintiff

19. LM General Insurance Company (“LM General”) is an insurance company duly

authorized to issue automobile policies in the State of New York. LM General is a resident of,

and maintains a place of business in Uniondale, New York. The claims that are the subject of this

action were processed and/or adjusted at the Uniondale office.

B. Defendants

i. Individual Defendant

20. That at all times hereinafter mentioned, Individual Defendant, Michelle Pinckney,

was and still is a natural person allegedly residing in the County of Kings, State of New York, at

3014 Snyder Avenue, Apt 1L, Brooklyn, New York 11226.

ii. Healthcare Provider Defendants

21. Upon information and belief, Defendant, Atlantic Medical & Diagnostic, P.C., was

and is a domestic professional service corporation within the State of New York. According to

the certificate of incorporation filed with the New York State Secretary of State, the business is

located in the County of Nassau and has a service of process address of 3000 Marcus Avenue,

Suite 2E-1, Lake Success, New York 11042.

22. Upon information and belief, Defendant, Best Care Pharmacy of New York Inc.,

was and is a domestic business corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Kings and has a service of process address of 2347 65th Street, Brooklyn, New

York 11204.
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23. Upon information and belief, Defendant, Body Logics Rehab PT P.C., was and is

a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Queens and has a service of process address of 8537 58th Avenue, Elmhurst, New

York 11373.

24. Upon information and belief, Defendant, BV Physical Therapy P.C., was and is a

domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Nassau and has a service of process address of 3422 Hewlett Avenue, Merrick,

New York 11566.

25. Upon information and belief, Defendant, Echenique Medical Office, P.C., was and

is a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Queens and has a service of process address of 142-04 Bayside Avenue, Flushing,

New York 11354.

26. Upon information and belief, Defendant, Empire State Rehab P.T. P.C., was and

is a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Queens and has a service of process address of 45 Kew Gardens Road, Apt 4E,

Kew Gardens, New York 11415.

27. Upon information and belief, Defendant, Glenmore Medical P.C., was and is a

domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

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in the County of Kings and has a service of process address of 700 Longview Road, South Orange,

New Jersey 07079.

28. Upon information and belief, Defendant, Herschel Kotkes, M.D., P.C., was and is

a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Nassau and has a service of process address 77 North Centre Avenue, Suite 208,

Rockville Centre, New York 11570.

29. Upon information and belief, Defendant, Inspire Family Health NP, P.C., was and

is a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Nassau and has a service of process address 2126 East 73rd Street, Ste. LL,

Brooklyn, New York 11234.

30. Upon information and belief, Defendant, JTK Chiropractic Care, P.C., was and is

a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Bronx and has a service of process address 187 Wolf Road, Suite 101, Albany,

New York 12205.

31. Upon information and belief, Defendant, Macintosh Medical, P.C., was and is a

domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of New York and has a service of process address 3000 Marcus Avenue, Suite 2E1,

Lake Success, New York 11042.

32. Upon information and belief, Defendant, Nova Medical Diagnostic P.C., was and

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is a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Kings and has a service of process address 6317 Avenue N, Brooklyn, New York

11234.

33. Upon information and belief, Defendant, Pacem Psychological Services, P.C., was

and is a domestic professional service corporation within the State of New York. According to

the certificate of incorporation filed with the New York State Secretary of State, the business is

located in the County of Queens and has a service of process address 4360 Douglaston Parkway,

Apt 221, Douglaston, New York 11363.

34. Upon information and belief, Defendant, Pretoria Medical Supply, Inc., was and is

a domestic business corporation within the State of New York. According to the certificate of

incorporation filed with the New York State Secretary of State, the business is located in the

County of Kings and has a service of process address of 2520 Kings Highway, Suite 1B, Brooklyn,

New York 11229.

35. Upon information and belief, Defendant, Ridge Mobile Medical PLLC, was and is

a domestic professional service limited liability company within the State of New York.

According to the certificate of incorporation filed with the New York State Secretary of State, the

business is located in the County of Albany and has a service of process address of One Commerce

Plaza, 99 Washington Avenue, Ste. 1008, Albany, New York 12260.

36. Upon information and belief, Defendant, Royal Care Pharmacy, Inc., was and is a

domestic business corporation within the State of New York. According to the certificate of

incorporation filed with the New York State Secretary of State, the business is located in the

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County of New York and has a service of process address of 127 East 110th Street, New York.,

New York 10029.

37. Upon information and belief, Defendant, Stand-Up MRI of Bensonhurst, P.C., was

and is a domestic professional service corporation within the State of New York. According to

the certificate of incorporation filed with the New York State Secretary of State, the business is

located in the County of Kings and has a service of process address 110 Marcus Drive, Melville,

New York 11747.

38. Upon information and belief, Defendant, V&S Supply Inc., was and is a domestic

business corporation within the State of New York. According to the certificate of incorporation

filed with the New York State Secretary of State, the business is located in the County of Kings

and has a service of process address of 2157 Ocean Avenue, Apt. 1L, Brooklyn, New York 11229.

39. Upon information and belief, Defendant, Vaynshteyn Chiropractic P.C., was and is

a domestic professional service corporation within the State of New York. According to the

certificate of incorporation filed with the New York State Secretary of State, the business is located

in the County of Kings and has a service of process address 3910 Church Avenue, Brooklyn, New

York 11203.

40. Upon information and belief, Defendant, Vish Supply Inc., was and is a domestic

business corporation within the State of New York. According to the certificate of incorporation

filed with the New York State Secretary of State, the business is located in the County of Kings

and has a service of process address of 2157 Ocean Avenue, Apt. 1L, Brooklyn, New York 11229.

IV. VENUE

41. Venue is appropriate in Nassau County pursuant to Section 503(c) of the New York

Civil Practice Law and Rules since it is Plaintiff’s place of business in said county and the principal

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place of business for at least one of the Defendants.

V. THE POLICY OF INSURANCE

42. On December 10, 2021 LM General’s insured, Christon Barry, procured policy of

insurance (hereinafter the “Barry Policy”) for a 2011 Ford Edge bearing vehicle indemnification

number 2FMDK4JC3BBB17810.

43. The Barry Policy was underwritten by LM General Insurance Company and a

policy number of AOS-221-648734-40 was assigned.

44. A certified copy of the Barry Policy alone with all relevant endorsements is attached

hereto as Exhibit “A”.

45. The Barry Policy provides for different types of coverage, such as liability coverage

and No-Fault coverage.

46. The Healthcare Provider Defendants, acting as the assignees of the Individual

Defendant, have sought to obtain No-Fault insurance benefits under the applicable policy of

insurance and its No-Fault endorsement under claim number 050299919 for services allegedly

rendered to the Individual Defendant.

47. The applicable policy of insurance contains a New York Mandatory Personal Injury

Protection (PIP) Endorsement, which states the following:

Part E – DUTIES AFTER AN ACCIDENT OR LOSS
We have no duty to provide coverage under this policy if the
failure to comply with the following duties is prejudicial to us:

* * *

B. A person seeking any coverage must:

1. Cooperate with us in the investigation, settlement or defense
of any claim or suit.
2. Send us copies of any notices or legal papers received in

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connection with the accident or loss as soon as reasonably
possible.
3. Submit, as often as we reasonably require:
a. to physical exams by physicians we select. We will pay
for these exams.
b. to examination under oath and subscribe the same.
4. Authorize us to obtain:
a. medical reports; and
b. other pertinent records
5. Submit a proof of loss when required by us.

* * *

Part F – GENERAL PROVISIONS
LEGAL ACTION AGAINST US

A. No legal action may be brought against us until there has been
full compliance with all the terms of this policy…

See Exhibit “A”.

A. LM General’s Reasonable Basis for Requesting Examinations Under Oath

48. According to the Department of Financial Services and 11 NYCRR 65-3.5(e) the

No-Fault Regulation does not require an insurance carrier to provide a reasonable basis for

requesting an EUO. A copy of New York State’s Insurance Department Opinion dated December

22, 2006, is annexed hereto as Exhibit “B”.

49. Nevertheless, LM General had, and continues to have, a reasonable basis to request

the EUO of the Individual Defendant with her full cooperation in answering questions and

providing any other pertinent information requested by LM General in order to determine the

facts and circumstances surrounding the subject loss of June 13, 2022, and whether or not she

was eligible to collect No-Fault benefits pursuant to Insurance Law 5102(a)(1).

50. Upon receipt of notification of the incident of June 13, 2022, LM General began an

investigation into the legitimacy of the incident. The initial investigation was based upon several

factors.
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51. The loss of June 13, 2022 , was a rear-end collision involving multiple occupants

of the Barry Vehicle, and the Insured, Christon Barry indicated that there was no damage to his

vehicle, and the police was not called because no one was injured, yet the occupants subsequently

sought extensive medical treatment following the subject loss.

52. Following the subject accident of June 13, 2022, Individual Defendant, Michelle

Pinckney received extensive medical treatment at clinics which are known No-Fault “medical

mills.”

53. Based upon the foregoing, LM General made an assignment to their attorneys to

conduct the EUO of Michelle Pinckney in connection with the subject loss.

54. On October 11, 2022, Individual Defendant, Michelle Pinckney appeared for her

EUO and provided the following testimony:

(a) Ms. Pinckney testified that the loss occurred after she had left a National
Democratic Congress function on Krier Place in Brooklyn;

(b) Ms. Pinckney denied paying for the ride home from “Chris”;

(c) Ms. Pinckney testified that there was a total of five (5) occupants in the
insured vehicle at the time of the loss, of whom she only knew the driver,
“Chris” and a woman named “Marcia” when they were rear-ended while
making a turn for a stop sign;

(d) Ms. Pinckney, when asked specifically about the names of the other
passengers, did recognize the first names of the other two women in the
vehicle but

(e) Ms. Pinckney testified that while the police were called and never showed,
while another passenger indicated that the police stopped multiple times
while they were at the scene;

(f) Ms. Pinckney testified that the vehicle she was in had damage to the rear
and the back bumper area had a crack int, but did not know if the vehicle
was drivable, and she did not recall any damage to the adverse vehicle;

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(g) Ms. Pinckney testified that she noted one person other than the occupants
of the vehicle at the scene who inquired as to whether they were ok, but she
denied knowing the person or his name or if he was the adverse driver;

(h) Ms. Pinckney testified that the other women in the vehicle had complained
of pain following the accident;

(i) Ms. Pinckney testified that she left the scene of the accident after
approximately an hour in a black cab that she had hailed down and for which
she paid for in cash, while another passenger indicated in a recorded
statement that Ms. Pinckney left with the adverse driver;

(j) Ms. Pinckney denied that the “cab” that had picked her up after the accident
was in fact the adverse vehicle and driver from the loss, and denied knowing
the adverse driver, and further denied being familiar with his name “Glen
Felix”; and

(k) Ms. Pinckney testified that she found the clinic that she attended for
treatment by searching google, and that she chose the one closest to her
residence; she admitted having seen “Chris” and one of the women at the
same medical clinic where she sought treatment;

55. LM General’s reasons for requesting the EUO of the Individual Defendant includes,

but not limited to, the following:

a. Based on the information delineated above;

b. To verify coverage;

c. To investigate the causal relationship; and

d. To determine the medical necessity of treatment.

VI. THE REQUIREMENT TO COOPERATE

A. The No-Fault Regulation

56. The No-Fault Regulation (the “Regulation”) governs all claims for injuries made

as a result of an automobile accident within the State of New York.

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57. The Regulation provides certain tools and mechanisms for an insurance carrier to

investigate an accident and to confirm the treatment that was allegedly rendered as a result of any

accident – this is done through conditions precedent to coverage or verification requests.

58. The conditions precedent to coverage states the following at 11 NYCRR 65-1.1:

MANDATORY PERSONAL INJURY PROTECTION
ENDORSEMENT, Section I, Conditions

No action shall lie against the Company unless, as a condition
precedent thereto, there shall have been full compliance with the
terms of this coverage.

* * *
Proof of Claim; Medical, Work Loss, and Other Necessary
Expenses. In the case of a claim for health service expenses, the
eligible injured person or that person’s assignee or
representative shall submit written proof of claim to the Company,
including full particulars of the nature and extent of the injuries and
treatment received and contemplated, as soon as reasonably
practicable but, in no event later than 45 days after the date services
are rendered. The eligible injured person or that person’s
representative shall submit written proof of claim for work loss
benefits and for other necessary expenses to the Company as soon
as reasonably practicable but, in no event, later than 90 days after
the work loss is incurred or the other necessary services are
rendered. The foregoing time limitations for the submission of proof
of claim shall apply unless the eligible injured person or that
person’s representative submits written proof providing clear and
reasonable justification for the failure to comply with such time
limitation. Upon request by the Company, the eligible injured
person or that person’s assignee or representative shall:

(a) execute a written proof of claim under oath;
(b) as may reasonably be required submit to examinations under
oath by any person named by the Company and subscribe the
same;
(c) provide authorization that will enable the Company to obtain
medical records; and
(d) provide any other pertinent information that may assist the
Company in determining the amount due and payable.
(emphasis added)

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59. 11 NYCRR 65-3.5(c) states that the “insurer is entitled to receive all items

necessary to verify the claim directly from the parties from whom such verification was requested.”

Section 11 NYCRR 65-3.8(f) dictates that nothing in the Regulation shall prevent an insurer from

requesting full and complete proof of claim prior to the issuance of any payments or denials.

60. The provision of the Conditions section that states “No action shall lie against the

Company unless, as a condition precedent thereto, there shall have been full compliance with the

terms of this coverage” has been interpreted by the Courts as establishing a condition precedent to

coverage.

61. 11 NYCRR § 65-3.5(c) states that the “insurer is entitled to receive all items

necessary to verify the claim directly from the parties from whom such verification was requested.”

Section 11 NYCRR 65-3.8(f) dictates that nothing in the Regulation shall prevent an insurer from

requesting full and complete proof of claim prior to the issuance of any payments or denials.

62. No-Fault benefits become overdue “if not paid within 30 calendar days after the

insurer receives proof of claim[.]” 11 NYCRR § 65-3.8(a)(1). However, as explained by the Court

of Appeals, the language of the Regulation “contemplates that an insurer must pay or deny only a

verified claim…within 30 calendar days of receipt; and, conversely, is not obligated to pay any

claim until it has been so verified.” Nyack Hosp. v. General Motors Acceptance Corp., 8 N.Y.3d

294 (2007) (emphasis added). Indeed, a claim is only deemed submitted when the insurer receives

“all of the relevant information requested pursuant to section 65-3.5 of this subpart.” 11 NYCRR

§ 65-3.8 (a)(1). The Court in American States Ins. Co. further held, “[a]n assignee ‘stands in the

shoes’ of an assignor and thus acquires no greater rights than its assignor”, citing Arena Const. Co.

v Sackaris & Sons, 282 AD2d 489 (N.Y. App. Div. 2d Dep’t 2001); Dilon Med. Supply Corp.

Travelers Ins. Co., 7 Misc. 3d, 927, 930 (N.Y. Civ Ct, Kings County 2005). Therefore, the defense

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of the breach of a condition precedent to coverage under the policy for failure to cooperate is also

assertible against the Healthcare Provider Defendants who accepted assignments of No-Fault

benefits.

63. If verification requests were timely issued, and the provider failed to respond, the

proof of claim was not deemed received and cannot be considered overdue. An action premised

upon a payment that is not overdue is premature and must be dismissed. Hosp. for Joint Diseases

v. New York Cent. Mut. Fire Ins. Co., 44 A.D.3d 903, 904 (N.Y. App. Div. 2d Dep’t 2007), citing

Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 A.D.2d 553 (N.Y. App.

Div. 2d Dep’t 1999). Pursuant to the No-Fault Regulation, the Individual Defendant has an

absolute condition precedent to coverage to cooperate with Liberty Mutual’s investigation and

Liberty Mutual’s defense of non-cooperation against the Individual Defendant is also assertible

against the Healthcare Provider Defendants as assignees of the Individual Defendant.

64. The New York No-Fault Regulation, 65-3.8 states the insurer has thirty (30) days

after proof of claim is received in which to pay or deny the bill before it is considered “overdue.”

65. However, Regulation 68 also provides that within ten (10) days after receipt of the

application for no-fault benefits, or a bill for payment of benefits, the carrier may request additional

verification. This “verification request” shall request all information that the carrier requires prior

to payment of the claim. 11 N.Y.C.R.R. § 65.15(d)(1).

66. The Regulation also provides that “[t]he insurer is entitled to receive all items

necessary to verify the claim from the parties from whom such verification is requested.” Id.

“[A]ny additional verification required by the insurer to establish proof of claim shall be requested

within 15 business days of receipt of the prescribed verification forms. Any requests by an insurer

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for additional verification need not be made on any prescribed or particular form.” Id. at §

65.3.5(b).

67. In the event that the requested verification is not received by the insurer within

thirty (30) days from the date of the request, the Regulation imposes a duty upon the insurer to

follow-up with the request. In order to comply with the mandates of the Regulation, the insurer

must, within ten (10) days, follow-up by either a telephone call to the party from whom the

verification is requested, which is properly documented in the file, or by mail. Id. at §65.15(e)(2).

Thereafter, the claim is considered “indefinitely tolled” as “[n]othing in the rules requires a second

follow-up, that is, a third request for verification.” Sound Shore Med. Ctr. v. New York Cent. Mut.

Fire Ins. Co., 106 A.D.3d 157, 163 (N.Y. App. Div. 2d Dep’t 2013). It is as if a bill was never

submitted and any further requests or denials cannot be untimely as the 30-day period to pay-or-

deny the claim “never commenced.” Westchester County Med. Ctr. v. New York Cent. Mut. Fire

Ins. Co., 262 A.D.2d 553, 555 (N.Y. App. Div. 2d Dep’t 1999).

68. However, as of April 1, 2013, this rule was modified. If the carrier has complied

with these mandates, and if the verification still has not been received, the carrier is within its

rights to deny the claim in its entirety but is not required to do so. See 11 NYCRR §65.3.8(b)(3)

69. Specifically, for services rendered after April 1, 2013, 11 NYCRR §65-3.8(b)

permits an insurance carrier that has requested additional verification from an applicant to deny

the applicant’s claim(s) if the requested verification or proof providing a reasonable justification

for the applicant’s failure to provide the verification is not received within 120 calendar days from

the date of the initial verification request. 11 NYCRR §65-3.8(b). A copy of the Fourth

Amendment to Regulation 68-C is annexed hereto as Exhibit “C”.

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70. Additional verification includes all information that is necessary for the insurer to

determine whether the claim is payable. See, Nyack Hosp. v. General Motors Acceptance Corp.,

27 A.D.3d 96 (N.Y. App. Div. 2d Dep’t 2005) (the provider’s proof of claim requirement under

the regulation includes providing the insurer with all additional verification timely requested

pursuant to 11 NYCRR § 65-3.5); see also Hospital for Joint Diseases v. Respondent Mutual

Automobile Insurance Company, 8 A.D.3d 533 (N.Y. App. Div. 2d Dep’t 2004).

71. Once an eligible injured person, or their assignee, fails to comply with a condition

precedent as set forth in the policy endorsements at 11 NYCRR § 65-1.1, such as a medical

examination or examination under oath, the carrier’s requirement to timely deny the bill is vitiated

and the policy is void, ab initio. Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC,

82 A.D.3d 559 (App. Div. 1st Dep't, 2011), citing, Central Gen. Hosp. v Chubb Group of Ins. Cos.,

90 N.Y.2d 195 (1997).

72. Pursuant to the No-Fault Regulation, the Individual Defendant, Michelle Pinckney,

has an absolute condition precedent to coverage to appear for an EUO and cooperate with the

carrier’s investigation.

B. The Defendants are not Eligible to Receive No-Fault Reimbursements due to the
Individual Defendant’s Failure to Provide the Requested Verification

73. The Individual Defendant, Michelle Pinckney has an absolute condition precedent

to coverage to respond to requests for verification.

74. The Individual Defendant’s refusal and failure to cooperate with the investigation

is a breach of a co

Case Info

Case No.

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Document Filed Date

April 29, 2024

Case Filing Date

April 29, 2024

County

Parties

ATLANTIC MEDICAL & DIAGNOSTIC, P.C. Defendant
BEST CARE PHARMACY OF NEW YORK INC. Defendant
BODY LOGICS REHAB PT P.C. Defendant
BV PHYSICAL THERAPY P.C. Defendant
CALLINAN, MICHAEL ANTHONY Attorney for the Plaintiff
ECHENIQUE MEDICAL OFFICE, P.C. Defendant
EMPIRE STATE REHAB P.T. P.C. Defendant
GLENMORE MEDICAL P.C. Defendant
HERSCHEL KOTKES, M.D., P.C. Defendant
HLINKA, VANESSA HELEN Attorney for the Plaintiff
INSPIRE FAMILY HEALTH NP, P.C. Defendant
JTK CHIROPRACTIC CARE, P.C. Defendant
LM GENERAL INSURANCE COMPANY Plaintiff
MACINTOSH MEDICAL, P.C. Defendant
Michelle Pinckney Defendant
NOVA MEDICAL DIAGNOSTIC P.C. Defendant
PACEM PSYCHOLOGICAL SERVICES, P.C. Defendant
PRETORIA MEDICAL SUPPLY, INC. Defendant
RIDGE MOBILE MEDICAL PLLC Defendant
ROSEN, MELANIE J. Attorney for the Plaintiff
ROYAL CARE PHARMACY, INC. Defendant
STAND-UP MRI OF BENSONHURST, P.C. Defendant
VAYNSHTEYN CHIROPRACTIC P.C. Defendant
VISH SUPPLY INC. Defendant
V& S SUPPLY, INC. Defendant

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