Preview
(FILED: NEW YORK COUNTY CLERK 0371972013) INDEX NO. 101144/2012
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/19/2013
SUPREME COURT OF THE STATE OF NEW YORK Index No.: 101144/12
COUNTY OF NEW YORK
wenn nnn nnn nnn nnn nnn ne nn nt reer ene
REPWEST INSURANCE COMPANY,
Plaintiff,
-against-
VERIFIED ANSWER AND
COUNTERCLAIMS
ZION ACUPUNCTURE, P.C., MEDCARE SUPPLY, INC.,
B.C. CHIROPRACTIC, P.C., NYU HOSPITALS CENTER
d/o/a HOSPITAL FOR JOINT DISEASE and
MUSCULOSKELETAL ANESTHESIA, SOCRATES
MEDICAL HEALTH, P.C., Sk PRIME MEDICAL SUPPLY,
INC., SOUTHER 788 MEDICAL, P.C., CARMELO
CASTILLO and ALTAGRACIA VARGAS,
Defendants.
wenn nnn nnn nnn nnn nnn teen er een nen
The Defendant, SOUTHERN 788 MEDICAL, P.C. (hereinafter referred to as “SOUTHERN”),
by its attorneys FAZIO, RYNSKY & ASSOCIATES, LLP, as and for its Answer to the Verified
Complaint herein alleges as follows, upon information and belief:
1 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 1 of the complaint.
Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 2 of the complaint.
Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 3 of the complaint.
Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 4 of the complaint.
Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 5 of the complaint.
Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 6 of the complaint.
Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 7 of the complaint.
Admits each and every allegation contained in paragraph 8 of the complaint.
Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 9 of the complaint.
10. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 10 of the complaint.
11 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 11 of the complaint except admits claimants were involved in
a motor vehicle accident on September 14, 2010.
12. Denies the allegations contained in paragraph 12 of the complaint except admits
claimants reported receiving bodily injuries in the collision.
13 Decline opportunity to respond to the statements set forth in paragraph 13 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response.
14, Decline opportunity to respond to the statements set forth in paragraph 14 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response.
15. Denies any knowledge or information sufficient to form a belief as to the aliegations
contained in paragraph 15 of the complaint except admits claimants received
treatment from SOUTHERN.
16 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 16 of the complaint except admits that SOUTHERN sought to
recover no-fault benefits as the assignee of claimants.
17 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 17 of the complaint.
18 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 18 of the complaint.
19 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 19 of the complaint except admits examinations under oath
(EUO) of claimants were requested.
20. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 20 of the complaint except admits claimants appeared for their
respective EUO.
21 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 21 of the complaint except admit Plaintiff sought an EUO of
medical provider SOUTHERN.
22 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 22 of the complaint except admits medical provider
SOUTHERN appeared for an EUO.
23 Denies any knowledge or information sufficient to form a belief
as to the allegations
contained in paragraph 23 of the complaint except admits that SOUTHERN filed an
action seeking payment for no-fault claims on 9/19/2011 in Civil Bronx (Index
#060358/11) which action has since been discontinued without prejudice.
24 Decline opportunity to respond to the statements set forth in paragraph 24 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response and are for the determination of this Court.
25 Decline opportunity to respond to the statements set forth in paragraph 25 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response and are for the determination of this Court.
26. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 26 of the complaint.
27 Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in
paragraphs | through 26 hereinabove as if same were fully set forth herein.
28 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 28 of the complaint.
29 Decline opportunity to respond to the statements set forth in paragraph 29 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response and are for the determination of this Court.
30. Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in
paragraphs 1 through 29 hereinabove as if same were fully set forth herein.
31 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 31 of the complaint except admits Defendant, SOUTHERN,
did not breach conditions precedent to coverage.
32, Decline opportunity to respond to the statements set forth in paragraph 32 of the
complaint on the grounds that the Jegal conclusions set forth therein do not call for a
response and are for the determination of this Court.
33. Decline opportunity to respond to the statements set forth in paragraph 33 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response and are for the determination of this Court.
34 Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in
paragraphs 1 through 33 hereinabove as if same were fully set forth herein.
35 Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 35 of the complaint.
36. Decline opportunity to respond to the statements set forth in paragraph 36 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
tTesponse and are for the determination of this Court.
37. Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in
paragraphs 1 through 36 hereinabove as if same were fully set forth herein.
38 Decline opportunity to respond to the statements set forth in paragraph 38 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response and are for the determination of this Court.
39, Decline opportunity to respond to the statements set forth in paragraph 39 of the
complaint on the grounds that the legal conclusions set forth therein do not call for a
response and are for the determination of this Court.
AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
40. Plaintiff's complaint fails to state a cause of action upon which relief may be granted
AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
41. Plaintiff herein is in violation of Insurance Law §5102 and the no-fault regulations
N.Y. Comp. Codes R. & Regs. Tit. 11 §65-1.1, et. seq. by practicing in dilatory
tactics and delaying the claims process and not promptly processing the underlying
claims.
AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
42. Plaintiff's claims are barred in whole or in part by the doctrine of unclean hands.
COUNTERCLAIMS
43 Defendant and Counterclaimant, SOUTHERN 788 MEDICAL, P.C. (hereinafter
“SOUTHERN”)., by and through counsel, counterclaim against Plaintiff as follows:
44 That Plaintiff is a corporation authorized to transact business within the State of New
York.
A5 That Plaintiff underwrites automobile policies pursuant to the laws of the State of
New York which include no-fault benefits.
46. That SOUTHERN is a professional corporation authorized to provide health services
in the State of New York.
47 That while the automobile insurance policy issued by Plaintiff was in full force and
effect, Carmelo Castillo and Altagracia Vargas sustained personal bodily injuries in
the accident arising out of the operation and/or use of vehicles insured by Plaintiff.
48 That solely as a result of the aforementioned accident, Plaintiff was obligated to
provide no-fault benefits to Carmelo Castillo and Altagracia Vargas.
49. That the aforesaid drivers and/or passengers and/or their agents gave notice of a
potential claim for no-fault benefits to the Plaintiff within the statutory time limit or
as soon as reasonable practicable after the aforementioned accidents.
AS AND FOR A FIRST COUNTERCLAIM
50. Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs
numbered 43 through 49.
51 That SOUTHERN rendered necessary medical services to Carmelo Castillo.
52 That SOUTHERN completed and properly executed all forms required by the
applicable New York State Insurance Department Regulation and has submitted the
required proofs of claim in a timely manner.
53 That due demand has been made of the Plaintiff by SOUTHERN for payment of no-
fault benefits.
54 That more than thirty (30) days have elapsed since the submission of the bills or
compliance with verification requests by SOUTHERN for serviced rendered.
35 That there has been no payment of the claims by Plaintiff to SOUTHERN for
services rendered.
36. That, as a result, SOUTHERN has been damaged in the amount of Six Thousand Four
Hundred Forty-Five Dollars and Nine cents ($6,445.09), together with statutory
interest of 2% per month pursuant to 1] NYCRR 65-3.9{a).
AS AND FOR A SECOND COUNTERCLAIM
37 Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs
numbered 43 through 49.
58 That SOUTHERN rendered necessary medical services to Altagracia Vargas.
59. That SOUTEHRN completed and properly executed all forms required by the
applicable New York State Insurance Department Regulation and has submitted the
required proofs of claim in a timely manner.
60. That due demand has been made of the Plaintiff by SOUTHERN for payment of no-
fault benefits.
61 That more than thirty (30) days have elapsed since the submission of the bilis or
compliance with verification requests by SOUTHERN for serviced rendered.
62. That there has been no payment of the claims by Plaintiff to SOUTHERN for
services rendered.
63 That, as a result, SOUTHERN has been damaged in the amount of Seven Thousand
Six Hundred Twenty-Eight Dollars and Thirty-Nine cents ($7,628.39), together with
statutory interest of 2% per month pursuant to 11 NYCRR 65-3.9(a).
AS AND FOR A THIRD COUNTERCLAIM
64. Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs
numbered 43 through 63.
65 Due to Plaintiff's failure to comply with its duties under the Insurance Law and New
York State No-Fault regulations, SOUTHERN was required to retain counsel.
66. Pursuant to 11 NYCRR 65-4.6(e), No-Fault claimants are entitled to recover
attomeys’ fees in the amount of twenty percent (20%) of the sum of the principle and
interest recovered per claim subject to a maximum of eight hundred and fifty
($850.00) dollars per claim.
AS AND FOR A FOURTH COUNTERCLAIM
67 Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs
numbered 43 through 66.
68 That Plaintiff sought an examination under oath (EUO) of SOUTHERN in connection
with payment of no-fault claims submitted by SOUTHERN for serviced rendered to
Altagracia Vargas and Carmelo Castillo.
69. That on June 8, 2011, SOUTHERN appeared for an EUO at the offices of Plaintiffs
counsel, Rubin, Fiorella & Friedman, LLP located at 292 Madison Avenue, 1 a
Floor, New York, New York 10017.
70 Pursuant to 11 NYCRR Section 65-3.5(e), persons noticed for an EUO are entitled to
reimbursement of lost earnings and reasonable transportation expenses incurred in
complying with said notice.
71 That prior to appearance at the EUO, it was agreed between SOUTHERN and
Plaintiffs counsel that SOUTHERN would be reimbursed at a rate of $200 per hour.
72. That the EUO held on June 8, 2011 lasted two (2) hours.
B That to date, Plaintiff failed to reimburse SOUTHERN for lost earnings and
reasonable transportation.
74, That as a result, SOUTHERN has been damaged in the amount of Four Hundred
($400.00) Dollars.
AS AND FOR A FIFTH COUNTERCLAIM
75 Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs
numbered 43 through 75.
76. That Plaintiff's within declaratory judgment action is frivolous and without merit;
consequently, SOUTHERN’s, legal fees for defending same should be reimbursed in
an amount to be determined by this Court but no less than Five Thousand ($5,000.00)
Dollars.
WHEREFORE Defendant and Counterclaimant, SOUTEHRN, demands judgment
dismissing the Complaint with prejudice, and entering judgment in favor of the Defendant and
Counterclaimant, SOUTHERN, as follows:
a) On the First Counterclaim in the amount of $6,445.09;
b) On the Second Counterclaim in the amount of $7,628.39;
d) On the Third Counterclaim for attomey fees in the amount of
twenty percent (20%) of the sum of the principle and interest per claim
subject to a maximum of eight hundred and fifty ($850.00)
dollars;
e) On the Fourth Counterclaim in the amount of $400.00;
f} On the Fifth Counterclaim for attorney fees in an amount to be determined by
this Court but no less than $5,000.00;
h) Together with the costs and disbursements of this action, and
i) Such other and further relief as the Court may deem just and proper.
Dated: Syosset, New York
November 19, 2012
Yours, etc
LAL.
ne Cangro, Esq.
We
‘io, Rynsky & Associates, LLP
Attorneys for Defendant/Counterclaimant
Southern 788 Medical, P.C.
175 Eileen Way
Syosset, New York 11791
(516) 496-1903
TO RUBIN, FIORELLA & FRIEDMAN, LLP
Attorney for Plaintiff
292 Madison Avenue; 11" Floor
New York, New York 10017
(212) 953-2381
LAW OFFICES OF GABRIEL & SHAPIRO, LLC
Attorneys for Defendant, Sk PRIME MEDICAL SUPPLY, INC.
3361 Park Avenue; Suite 1000 '
Wantagh, New York 11793
(516) 308-7373
Wy
VERIFICATION
STATE OF NEW YORK )
) SS:
COUNTY OF NASSAU )
The undersigned, an attorney admitted to practice in the Courts of the State of New York,
shows:
Deponent is JANENE CANGRO, attorney of record for Defendant, SOUTHERN 788
MEDICAL, P.C., in the within action. Deponent has read the foregoing VERIFIED ANSWER
AND COUNTERCLAIMS and knows the contents thereof, the same is true to deponents own
knowledge, except as to the matters therein stated to be alleged on information and belief, and as
to those matters deponent believes it to be true. This verification is made by deponent and not by
said Defendant as Defendant is a corporation with a business location outside of the county
wherein your deponent’s office is located.
The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge
are as follows: Investigations made on behalf
of said Defendant.
The undersigned affirms that the foregoing statements are true, under penalties of perjury.
Dated: Syosset, New York
November 19, 2012
Mt lUUyy,
JANENE CANGRO
AFFIDAVIT
STATE OF NEW YORK )
) ss.
COUNTY OF NASSAU )
CALETHA JETER, being duly sworn, deposes and says:
I am not a party to the within action, am over-18 years of age and reside at Nassau
County, New York.
On November 19, 2012, I served the within Verified Answer and Counterclaims upon:
RUBIN FIORELLA & FRIEDMAN, LLP
Attorneys for Plaintiff
630 Third Avenue; 3™ Floor
New York, New York 10017
LAW OFFICES OF GABRIEL & SHAPIRO, LLC
Attorneys for Defendant, SK PRIME MEDICAL SUPPLY, INC.
3361 Park Avenue; Suite 1000
Wantagh, New York 11793
The address(es) designated by said Attorney(s) for that purpose by depositing a true copy of
same enclosed in a post-paid properly addressed wrapper, in an official depository under the
exclusive care and custody of the United States Postal Service within the State of New York.
: we
Sworn to before me this
19% day of November, 2012
rer laapie
Notary Public
JANENE CANGRO
Notary Public, State of New York
No. 01CA4976189
Qualified in Suffolk County
Commission Expires January 14, 2015
ex.Ni 1144/2012
REME COURT OF TE OF NEW:
COUNTY OF NEW YORK
STINS' CE. COMP.
age st:
NYU HOSPITALS CENTER HOSPITAL
MUSCULOSKELET,: ATH, PC.
SK PRIME MEDICAL 8S RN 7: IC:
ASTILL id ALTAGRACIA VARG.
VERIFIED ANSWER AND. COUNTERCLAIM!
Fazio, Rynsky & Associates, LLP
Attorneys) for Defendant, SOUTHERN 788 MEDICAL, P.C.
175 Eileen Way
Syossel, NY 11791
(516) 469-1903
Facsimile: (516) 496-0912
(NOT FOR SERVICE OF LITIGATION PAPERS)
Pursuant to 22 NYCRR 130-1: 1, the undersigned, an.attorney admitted to practice in the cour ts
of New-York; certifies that, upon information and beliefand teasonable inquiry.
i
contentions contained ini the annexed locumment are noi
Dated ovemb 19, 2012 Signat
Print Sig JAI CANGR
rvice of a copy.of the hereby‘admitted
Dated,
y(s)fi
IRS: PLEASE: TAKE NOTICE
(OTICE OF. ENTR) that the wi (Cerlified) true tere he office of the rk of the
named Court‘on
NOTICE OF: der of which the wit is a true.copy will be:presented. for selilement to the
SETTLEMENT: “Sone of the judges ofthe wil hin named at 1850 New viYork Avert, Hunt \gto1
Datei
ours, ete,
Altoniieys fe
To
Preview
(FILED: NEW YORK COUNTY CLERK 0371972013) INDEX NO. 101144/2012 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 03/19/2013 SUPREME COURT OF THE STATE OF NEW YORK Index No.: 101144/12 COUNTY OF NEW YORK wenn nnn nnn nnn nnn nnn ne nn nt reer ene REPWEST INSURANCE COMPANY, Plaintiff, -against- VERIFIED ANSWER AND COUNTERCLAIMS ZION ACUPUNCTURE, P.C., MEDCARE SUPPLY, INC., B.C. CHIROPRACTIC, P.C., NYU HOSPITALS CENTER d/o/a HOSPITAL FOR JOINT DISEASE and MUSCULOSKELETAL ANESTHESIA, SOCRATES MEDICAL HEALTH, P.C., Sk PRIME MEDICAL SUPPLY, INC., SOUTHER 788 MEDICAL, P.C., CARMELO CASTILLO and ALTAGRACIA VARGAS, Defendants. wenn nnn nnn nnn nnn nnn teen er een nen The Defendant, SOUTHERN 788 MEDICAL, P.C. (hereinafter referred to as “SOUTHERN”), by its attorneys FAZIO, RYNSKY & ASSOCIATES, LLP, as and for its Answer to the Verified Complaint herein alleges as follows, upon information and belief: 1 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 1 of the complaint. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 2 of the complaint. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 3 of the complaint. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 4 of the complaint. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 5 of the complaint. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 6 of the complaint. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 7 of the complaint. Admits each and every allegation contained in paragraph 8 of the complaint. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 9 of the complaint. 10. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 10 of the complaint. 11 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 11 of the complaint except admits claimants were involved in a motor vehicle accident on September 14, 2010. 12. Denies the allegations contained in paragraph 12 of the complaint except admits claimants reported receiving bodily injuries in the collision. 13 Decline opportunity to respond to the statements set forth in paragraph 13 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response. 14, Decline opportunity to respond to the statements set forth in paragraph 14 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response. 15. Denies any knowledge or information sufficient to form a belief as to the aliegations contained in paragraph 15 of the complaint except admits claimants received treatment from SOUTHERN. 16 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 16 of the complaint except admits that SOUTHERN sought to recover no-fault benefits as the assignee of claimants. 17 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 17 of the complaint. 18 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 18 of the complaint. 19 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 19 of the complaint except admits examinations under oath (EUO) of claimants were requested. 20. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 20 of the complaint except admits claimants appeared for their respective EUO. 21 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 21 of the complaint except admit Plaintiff sought an EUO of medical provider SOUTHERN. 22 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 22 of the complaint except admits medical provider SOUTHERN appeared for an EUO. 23 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 23 of the complaint except admits that SOUTHERN filed an action seeking payment for no-fault claims on 9/19/2011 in Civil Bronx (Index #060358/11) which action has since been discontinued without prejudice. 24 Decline opportunity to respond to the statements set forth in paragraph 24 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response and are for the determination of this Court. 25 Decline opportunity to respond to the statements set forth in paragraph 25 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response and are for the determination of this Court. 26. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 26 of the complaint. 27 Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in paragraphs | through 26 hereinabove as if same were fully set forth herein. 28 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 28 of the complaint. 29 Decline opportunity to respond to the statements set forth in paragraph 29 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response and are for the determination of this Court. 30. Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in paragraphs 1 through 29 hereinabove as if same were fully set forth herein. 31 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 31 of the complaint except admits Defendant, SOUTHERN, did not breach conditions precedent to coverage. 32, Decline opportunity to respond to the statements set forth in paragraph 32 of the complaint on the grounds that the Jegal conclusions set forth therein do not call for a response and are for the determination of this Court. 33. Decline opportunity to respond to the statements set forth in paragraph 33 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response and are for the determination of this Court. 34 Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in paragraphs 1 through 33 hereinabove as if same were fully set forth herein. 35 Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 35 of the complaint. 36. Decline opportunity to respond to the statements set forth in paragraph 36 of the complaint on the grounds that the legal conclusions set forth therein do not call for a tTesponse and are for the determination of this Court. 37. Defendant, SOUTHERN, repeats, restates, and realleges the answers set forth in paragraphs 1 through 36 hereinabove as if same were fully set forth herein. 38 Decline opportunity to respond to the statements set forth in paragraph 38 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response and are for the determination of this Court. 39, Decline opportunity to respond to the statements set forth in paragraph 39 of the complaint on the grounds that the legal conclusions set forth therein do not call for a response and are for the determination of this Court. AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 40. Plaintiff's complaint fails to state a cause of action upon which relief may be granted AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 41. Plaintiff herein is in violation of Insurance Law §5102 and the no-fault regulations N.Y. Comp. Codes R. & Regs. Tit. 11 §65-1.1, et. seq. by practicing in dilatory tactics and delaying the claims process and not promptly processing the underlying claims. AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 42. Plaintiff's claims are barred in whole or in part by the doctrine of unclean hands. COUNTERCLAIMS 43 Defendant and Counterclaimant, SOUTHERN 788 MEDICAL, P.C. (hereinafter “SOUTHERN”)., by and through counsel, counterclaim against Plaintiff as follows: 44 That Plaintiff is a corporation authorized to transact business within the State of New York. A5 That Plaintiff underwrites automobile policies pursuant to the laws of the State of New York which include no-fault benefits. 46. That SOUTHERN is a professional corporation authorized to provide health services in the State of New York. 47 That while the automobile insurance policy issued by Plaintiff was in full force and effect, Carmelo Castillo and Altagracia Vargas sustained personal bodily injuries in the accident arising out of the operation and/or use of vehicles insured by Plaintiff. 48 That solely as a result of the aforementioned accident, Plaintiff was obligated to provide no-fault benefits to Carmelo Castillo and Altagracia Vargas. 49. That the aforesaid drivers and/or passengers and/or their agents gave notice of a potential claim for no-fault benefits to the Plaintiff within the statutory time limit or as soon as reasonable practicable after the aforementioned accidents. AS AND FOR A FIRST COUNTERCLAIM 50. Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs numbered 43 through 49. 51 That SOUTHERN rendered necessary medical services to Carmelo Castillo. 52 That SOUTHERN completed and properly executed all forms required by the applicable New York State Insurance Department Regulation and has submitted the required proofs of claim in a timely manner. 53 That due demand has been made of the Plaintiff by SOUTHERN for payment of no- fault benefits. 54 That more than thirty (30) days have elapsed since the submission of the bills or compliance with verification requests by SOUTHERN for serviced rendered. 35 That there has been no payment of the claims by Plaintiff to SOUTHERN for services rendered. 36. That, as a result, SOUTHERN has been damaged in the amount of Six Thousand Four Hundred Forty-Five Dollars and Nine cents ($6,445.09), together with statutory interest of 2% per month pursuant to 1] NYCRR 65-3.9{a). AS AND FOR A SECOND COUNTERCLAIM 37 Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs numbered 43 through 49. 58 That SOUTHERN rendered necessary medical services to Altagracia Vargas. 59. That SOUTEHRN completed and properly executed all forms required by the applicable New York State Insurance Department Regulation and has submitted the required proofs of claim in a timely manner. 60. That due demand has been made of the Plaintiff by SOUTHERN for payment of no- fault benefits. 61 That more than thirty (30) days have elapsed since the submission of the bilis or compliance with verification requests by SOUTHERN for serviced rendered. 62. That there has been no payment of the claims by Plaintiff to SOUTHERN for services rendered. 63 That, as a result, SOUTHERN has been damaged in the amount of Seven Thousand Six Hundred Twenty-Eight Dollars and Thirty-Nine cents ($7,628.39), together with statutory interest of 2% per month pursuant to 11 NYCRR 65-3.9(a). AS AND FOR A THIRD COUNTERCLAIM 64. Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs numbered 43 through 63. 65 Due to Plaintiff's failure to comply with its duties under the Insurance Law and New York State No-Fault regulations, SOUTHERN was required to retain counsel. 66. Pursuant to 11 NYCRR 65-4.6(e), No-Fault claimants are entitled to recover attomeys’ fees in the amount of twenty percent (20%) of the sum of the principle and interest recovered per claim subject to a maximum of eight hundred and fifty ($850.00) dollars per claim. AS AND FOR A FOURTH COUNTERCLAIM 67 Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs numbered 43 through 66. 68 That Plaintiff sought an examination under oath (EUO) of SOUTHERN in connection with payment of no-fault claims submitted by SOUTHERN for serviced rendered to Altagracia Vargas and Carmelo Castillo. 69. That on June 8, 2011, SOUTHERN appeared for an EUO at the offices of Plaintiffs counsel, Rubin, Fiorella & Friedman, LLP located at 292 Madison Avenue, 1 a Floor, New York, New York 10017. 70 Pursuant to 11 NYCRR Section 65-3.5(e), persons noticed for an EUO are entitled to reimbursement of lost earnings and reasonable transportation expenses incurred in complying with said notice. 71 That prior to appearance at the EUO, it was agreed between SOUTHERN and Plaintiffs counsel that SOUTHERN would be reimbursed at a rate of $200 per hour. 72. That the EUO held on June 8, 2011 lasted two (2) hours. B That to date, Plaintiff failed to reimburse SOUTHERN for lost earnings and reasonable transportation. 74, That as a result, SOUTHERN has been damaged in the amount of Four Hundred ($400.00) Dollars. AS AND FOR A FIFTH COUNTERCLAIM 75 Defendant and Counterclaimant, SOUTHERN, repeats and realleges paragraphs numbered 43 through 75. 76. That Plaintiff's within declaratory judgment action is frivolous and without merit; consequently, SOUTHERN’s, legal fees for defending same should be reimbursed in an amount to be determined by this Court but no less than Five Thousand ($5,000.00) Dollars. WHEREFORE Defendant and Counterclaimant, SOUTEHRN, demands judgment dismissing the Complaint with prejudice, and entering judgment in favor of the Defendant and Counterclaimant, SOUTHERN, as follows: a) On the First Counterclaim in the amount of $6,445.09; b) On the Second Counterclaim in the amount of $7,628.39; d) On the Third Counterclaim for attomey fees in the amount of twenty percent (20%) of the sum of the principle and interest per claim subject to a maximum of eight hundred and fifty ($850.00) dollars; e) On the Fourth Counterclaim in the amount of $400.00; f} On the Fifth Counterclaim for attorney fees in an amount to be determined by this Court but no less than $5,000.00; h) Together with the costs and disbursements of this action, and i) Such other and further relief as the Court may deem just and proper. Dated: Syosset, New York November 19, 2012 Yours, etc LAL. ne Cangro, Esq. We ‘io, Rynsky & Associates, LLP Attorneys for Defendant/Counterclaimant Southern 788 Medical, P.C. 175 Eileen Way Syosset, New York 11791 (516) 496-1903 TO RUBIN, FIORELLA & FRIEDMAN, LLP Attorney for Plaintiff 292 Madison Avenue; 11" Floor New York, New York 10017 (212) 953-2381 LAW OFFICES OF GABRIEL & SHAPIRO, LLC Attorneys for Defendant, Sk PRIME MEDICAL SUPPLY, INC. 3361 Park Avenue; Suite 1000 ' Wantagh, New York 11793 (516) 308-7373 Wy VERIFICATION STATE OF NEW YORK ) ) SS: COUNTY OF NASSAU ) The undersigned, an attorney admitted to practice in the Courts of the State of New York, shows: Deponent is JANENE CANGRO, attorney of record for Defendant, SOUTHERN 788 MEDICAL, P.C., in the within action. Deponent has read the foregoing VERIFIED ANSWER AND COUNTERCLAIMS and knows the contents thereof, the same is true to deponents own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes it to be true. This verification is made by deponent and not by said Defendant as Defendant is a corporation with a business location outside of the county wherein your deponent’s office is located. The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge are as follows: Investigations made on behalf of said Defendant. The undersigned affirms that the foregoing statements are true, under penalties of perjury. Dated: Syosset, New York November 19, 2012 Mt lUUyy, JANENE CANGRO AFFIDAVIT STATE OF NEW YORK ) ) ss. COUNTY OF NASSAU ) CALETHA JETER, being duly sworn, deposes and says: I am not a party to the within action, am over-18 years of age and reside at Nassau County, New York. On November 19, 2012, I served the within Verified Answer and Counterclaims upon: RUBIN FIORELLA & FRIEDMAN, LLP Attorneys for Plaintiff 630 Third Avenue; 3™ Floor New York, New York 10017 LAW OFFICES OF GABRIEL & SHAPIRO, LLC Attorneys for Defendant, SK PRIME MEDICAL SUPPLY, INC. 3361 Park Avenue; Suite 1000 Wantagh, New York 11793 The address(es) designated by said Attorney(s) for that purpose by depositing a true copy of same enclosed in a post-paid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. : we Sworn to before me this 19% day of November, 2012 rer laapie Notary Public JANENE CANGRO Notary Public, State of New York No. 01CA4976189 Qualified in Suffolk County Commission Expires January 14, 2015 ex.Ni 1144/2012 REME COURT OF TE OF NEW: COUNTY OF NEW YORK STINS' CE. COMP. age st: NYU HOSPITALS CENTER HOSPITAL MUSCULOSKELET,: ATH, PC. SK PRIME MEDICAL 8S RN 7: IC: ASTILL id ALTAGRACIA VARG. VERIFIED ANSWER AND. COUNTERCLAIM! Fazio, Rynsky & Associates, LLP Attorneys) for Defendant, SOUTHERN 788 MEDICAL, P.C. 175 Eileen Way Syossel, NY 11791 (516) 469-1903 Facsimile: (516) 496-0912 (NOT FOR SERVICE OF LITIGATION PAPERS) Pursuant to 22 NYCRR 130-1: 1, the undersigned, an.attorney admitted to practice in the cour ts of New-York; certifies that, upon information and beliefand teasonable inquiry. i contentions contained ini the annexed locumment are noi Dated ovemb 19, 2012 Signat Print Sig JAI CANGR rvice of a copy.of the hereby‘admitted Dated, y(s)fi IRS: PLEASE: TAKE NOTICE (OTICE OF. ENTR) that the wi (Cerlified) true tere he office of the rk of the named Court‘on NOTICE OF: der of which the wit is a true.copy will be:presented. for selilement to the SETTLEMENT: “Sone of the judges ofthe wil hin named at 1850 New viYork Avert, Hunt \gto1 Datei ours, ete, Altoniieys fe To