Preview
INDEX NO. 153875/2012
(FILED: NEW YORK COUNTY CLERK 06/21/2012)
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/21/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
SA CASA CEERI TS i ie TESS,
Repwest Insurance Company, Index No.:
Date Filed:
Plaintiff,
Plaintiff designates
-against- NEW YORK COUNTY
as the basis of venue
Advanced Psychological Care, P.C., Arthur Diagnostic
Medical, P.C., Auto RX, L.L.C., Broad Spectrum Physical SUMMONS
Therapy, P.C., Dynasty Medical Care, P.C., J&R
Chiropractic, P.C., MB Precision Chiropractic, P.C., Anna
Meyerzon, New York Urological Services, P.C., New The basis of venue is
Wave Chiropractic, P.C., Ridgewood Diagnostics & CPLR 509
Medical, P.C., David M. Schwalb, M.D., SAS Medical,
P.C., Socrates Medical Health, P.C., Vital Meridian
Acupuncture, P.C., Clara Peguero De Hussein, Silvestre
Octavio Rodriguez, and Ericka Rogers,
Defendants.
ii ite end miei ei iit iene ainrsnosennecnent nt
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve
a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a Notice of
Appearance, on the plaintiff's attorneys within twenty (20) days after the service of this Summons,
exclusive of the day of service (or within thirty (30) days after the service is complete if this
Summons is not personally delivered to you within the State of New York); and in case of your
failure to appear or answer, judgment will be taken against you by default for the relief demanded
in the Complaint.
DATED: New York, New York
June 20, 2012 Yours, etc.,
RUBIN, FIORELLA & FRIEDMAN LLP
Charles T. Rubin, Esq.
630 Third Avenue, 3 Floor
New York, New York 10017
(212) 953-2381
Our File: 521-18217
Ridgewood Diagnostics & Medical, P.C.
C/O Listrom & Associates
73 Gleneida Avenue
Carmel, New York 10512
David M. Schwalb, M.D.
234 East 149" Street
Bronx, New York 10451
SAS Medical, P.C.
63-12 Bourton Street
Rego Park, New York 11374
Socrates Medical Health, P.C.
200 West Tremont Avenue
Bronx, New York 10453
Vital Medical Acupuncture, P.C.
2300 Arthur Avenue
Bronx, New York 10458
Clara Peguero De Hussein
323 East Mosholu Parkway North, Apt. 1C
Bronx, New York 10467
Silvestre Octavio Rodriguez
240 175" Street, Apt. 109
Bronx, New York 10457
Ericka Rogers
2430 Marion Avenue, Apt. 6C
Bronx, New York 10458
DEFENDANTS’ ADDRESSES:
Advanced Psychological Care, P.C.
62 Whitman Drive
Brooklyn, New York 11234
Arthur Diagnostic Medical, P.C.
2309 Arthur Avenue
Bronx, New York 10458
Auto RX, L.L.C.
145 South 400 East
Salt Lake City, Utah 84111
Broad Spectrum Physical Therapy, P.C.
C/O Anna Meyerzon
115 Cuba Avenue
Staten Island, New York 10306
Dynasty Medical Care, P.C.
68 South Service Road, Suite 100
Melville, New York 11747
JJ & R Chiropractic
389 Roosevelt Avenue
Freeport, New York 11520
MB Precision Chiropractic, P.C.
2413 Babylon Street
Wantagh, New York 11793
Anna Meyerzon
115 Cuba Avenue
Staten Island, New York 10306
New York Urological Services, P.C.
St. Barnabas Hospital
183 Third Avenue
Bronx, New York 10452
New Wave Chiropractic, P.C.
135 Eastern Parkway, No. 14
Brooklyn, New York 11238
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
wee ee ee ene ee ee ee ee ee eee eee
Repwest Insurance Company, Index No.:
Plaintiff, VERIFIED COMPLAINT
-against-
Advanced Psychological Care, P.C., Arthur Diagnostic
Medical, P.C., Auto RX, L.L.C., Broad Spectrum
Physical Therapy, P.C., Dynasty Medical Care, P.C., JJ
& R Chiropractic, P.C., MB Precision Chiropractic,
P.C., Anna Meyerzon, New York Urological Services,
P.C., New Wave Chiropractic, P.C., Ridgewood
Diagnostics & Medical, P.C., David M. Schwalb,
M.D., SAS Medical, P.C., Socrates Medical Health,
P.C., Vital Meridian Acupuncture, P.C., Clara Peguero
De Hussein, Silvestre Octavio Rodriguez, and Ericka
Rogers,
Defendants.
= % ss aa - xX
Plaintiff, by its attorneys, Rubin, Fiorella & Friedman LLP, alleges upon information and
belief as follows:
THE PARTIES
1 That at all times herein, plaintiff, Repwest Insurance Company (“Repwest”), has been
and still is a foreign corporation and is duly authorized by the State of New York to conduct the
business of insurance.
2 That at all times herein, defendant Advanced Psychological Care, P.C., 62 Whitman
Drive, Brooklyn, New York 11234, has been and still is a New York State professional corporation.
3 That at all times herein, defendant Arthur Diagnostic Medical, P.C., 2309 Arthur
Avenue, Bronx, New York 10458, has been and still isa New York State professional corporation.
4 That at all times herein, defendant Auto RX, L.L.C., 145 South 400 East, Salt Lake
City, Utah 84111, was a Utah limited liability company which transacted business and supplied
services within New York State.
5 That at all times herein, defendant Broad Spectrum Physical Therapy, P.C., c/o Anna
Meyerzon, 115 Cuba Avenue, Staten Island, New York 10306, has been and still is a New York
State professional corporation.
6 That at all times herein, defendant Dynasty Medical Care, P.C., 68 South Service
Road, Suite 100, Melville, New York 11747, has been and still is a New York State professional
corporation,
7 That at all times herein, defendant JJ & R Chiropractic, P.C., 389 Roosevelt Avenue,
Freeport, New York 11520, has been and still is a New York State professional corporation.
8 That at all times herein, defendant MB Precision Chiropractic, P.C., 2413 Babylon
Street, Wantagh, New York 11793, has been and still is a New York State professional corporation.
9 That at all times herein, defendant Anna Meyerzon, 115 Cuba Avenue, Staten Island,
New York 10306, has been and still is a New York State resident.
10. That at all times herein, defendant New York Urological Services, P.C., St. Barnabas
Hospital, 183 Third Avenue, Bronx, New York 10452, has been and still is a New York State
professional corporation.
ll. That at all times herein, defendant New Wave Chiropractic, P.C., 135 Eastern
Parkway, No. 1-I, Brooklyn, New York 11238, has been and still is a New York State professional
corporation.
12. That at all times herein, defendant Ridgewood Diagnostics & Medical, P.C., c/o
Listrom & Associates, 73 Gleneida Avenue, Carmel, New York 10512, was a New York State
professional corporation dissolved in 2010, which nevertheless continued to transact business and
supply services within New York State.
13. That at all times herein, defendant David M. Schwalb, M.D., 234 East 149" Street,
Bronx, New York 10451, has been and still is a New York State resident.
2
14, That at all times herein, defendant SAS Medical, P.C., 63-12 Bourton Street, Rego
Park, New York 11374, has been and still is a New York State professional corporation.
15. That at all times herein, defendant Socrates Medical Health, P.C.,200 West Tremont
Avenue, Bronx, New York 10453, has been and still is a New York State professional corporation.
16. That at all times herein, defendant Vital Meridian Acupuncture, P.C., 2300 Arthur
Avenue, Bronx, New York 10458, has been and still is a New York State professional corporation.
17. That at all times herein, defendant Clara Peguero De Hussein, 323 East Mosholu
Parkway North, Apt. 1C, Bronx, New York 10467, has been and still is a New York State resident.
18. That at all times herein, defendant Silvestre Octavio Rodriguez, 240 175" Street, Apt.
109, Bronx, New York 10457, has been and still is a New York State resident.
19, That at all times herein, defendant Ericka Rogers, 2430 Marion Avenue, Apt. 6C,
Bronx, New York 10458, has been and still is a New York State resident.
THE DEFENDANTS’ SPECIOUS NO-FAULT CLAIMS
20. That defendants Clara Peguero De Hussein, Silvestre Octavio Rodriguez, and Ericka
Rogers (collectively, the “Claimants”) allegedly were the occupants of a U-Haul truck, insured by
Repwest, which allegedly collided with an elevated railroad support beam on October 25, 2010 at
or near the intersection of Jerome Avenue and 205th Street in Bronx, New York. The police report
indicates that the Claimants reported no physical injury at the scene, had no visible physical injury,
refused medical attention at the scene, that the vehicle sustained no damage, and that airbags did not
deploy.
21. That despite these circumstances, the Claimants later reported to have sustained
bodily injuries in this collision. Repwest assigned claim number 00274286-2010 to all No-Fault
claims relating to the October 25, 2010 collision.
22. That under 11 N.Y.C.R.R. 65-1.1, which governs No-Fault claims for these
Claimants, the “New York Mandatory Personal Injury Protection Endorsement” of the regulation
requires that insurers such as Repwest provide No-Fault benefits to persons injured in the use or
operation of vehicles in New York State, subject to certain conditions and terms. The “conditions”
provision of the New York Mandatory Personal Injury Protection endorsement states:
Conditions
Action Against Company. 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.
* * *
... Upon request by the Company, the eligible injured person or that
person’s assignee or representative shall:
* * *
(b) as may reasonably be required submit to examinations under
oath by any person named by the Company and subscribe the
same;
*
(d) provide any other pertinent information that may assist the
Company in determining the amount due and payable.
The eligible injured person shall submit to medical examination by
physicians selected by, or acceptable to, the Company, when, and as
often as, the Company may reasonably require.
23. That the “exclusions” provision of the New York Mandatory Personal Injury
Protection endorsement states:
Exclusions
This coverage does not apply to personal injury sustained by:
* * *
() any person who intentionally causes his or her own personal
injury.
24. That in addition, 11 N.Y.C.R.R. 65-3.5(c) provides that: “the insurer is entitled to
receive all items necessary to verify the claim directly from the parties from whom such verification
was requested.”
25. That the Claimants were persons who allegedly sustained personal injuries arising
out of the use or operation of the insured motor vehicle and allegedly began receiving medical
treatment from defendants Advanced Psychological Care, P.C., Arthur Diagnostic Medical, P.C.,
Auto RX, L.L.C., Broad Spectrum Physical Therapy, P.C., Dynasty Medical Care, P.C., JJ & R
Chiropractic, P.C., MB Precision Chiropractic, P.C., Anna Meyerzon, New York Urological
Services, P.C., New Wave Chiropractic, P.C., Ridgewood Diagnostics & Medical, P.C., David M.
Schwalb, M.D., SAS Medical, P.C., Socrates Medical Health, P.C., and Vital Meridian Acupuncture,
P.C. (collectively, the “Medical Provider Defendants”).
26. That Repwest received numerous claims from the Medical Provider Defendants
seeking to recover No-Fault benefits as the alleged assignees of the Claimants. Notwithstanding the
facts that the Claimants reported no physical injury at the scene, had no visible physical injury,
refused medical attention at the scene, that the vehicle sustained no damage, and that airbags did not
deploy, the Medical Provider Defendants, to date, have submitted tens of thousands of dollars in No-
Fault claims as the alleged assignees of the Claimants, exclusive of interest and attorney’s fees.
27. That these factors raised a strong probability that the October 25, 2010 loss was
staged or intentionally caused and/or that the treatments submitted were not related to the collision,
both of which would be considered non-covered events under the No-Fault regulations.
DEFENDANTS’ VIOLATIONS OF THE NO-FAULT REGULATIONS
28. That based upon these factors, Repwest, pursuant to its rights under the No-Fault
regulations, duly and properly sought verification of the October 25, 2010 collision claims by
requesting the Independent Medical Examinations (“IME”) of the Claimants to confirm the
legitimacy of this loss and the alleged medical treatment.
29, That despite due demand, Claimants Clara Peguero De Hussein and Ericka Rogers
failed to appear for their scheduled IMEs on two occasions each. These failures to appear were
violations of the No-Fault regulations and violations of conditions precedent to coverage for all No-
Fault claims submitted.
30. That based upon these factors, Repwest, pursuant to its rights under the No-Fault
regulations, duly and properly sought verification of these claims by requesting the Examinations
Under Oath (“EUO”) of the Claimants to confirm the legitimacy of this loss and the alleged medical
treatment.
31. That despite due demand, Claimants Clara Peguero De Hussein and Ericka Rogers
failed to appear for their scheduled EUOs on two occasions each. These failures to appear were
violations of the No-Fault regulations and violations of conditions precedent to coverage for all No-
Fault claims submitted.
32. That Claimant Silvestre Octavio Rodriguez appeared for his EUO. However, his
testimony raised issues as to the legitimacy and medical necessity of his purported medical
treatment. In particular, given the facts that the police report indicates that he reported no physical
injury at the scene, had no visible physical injury, refused medical attention at the scene, that the
vehicle sustained no damage, and that airbags did not deploy, it is unlikely that the purported
accident would have produced the kinds of injuries that required him to seek physical therapy,
acupuncture and chiropractic treatment five or four times per week and a psychologist once a week
for more than four months, as he testified. These factors further contributed to a strong probability
that Claimant Silvestre Octavio Rodriguez’s submitted treatment was not related to the October 25,
2010 collision.
33. That the defendants have commenced or will commence legal actions or file for
arbitrations against Repwest seeking money damages for No-Fault claims that Repwest properly
has denied, as detailed above.
34. That Repwest requires and requests a declaration of the rights and other legal
relations of the respective parties in accordance with the applicable laws relating to declaratory
judgment.
35. That Repwest has no adequate remedy at law.
36. That Repwest has not previously sought the relief requested herein in this or any
other Court.
FOR A FIRST CAUSE OF ACTION
37. Repwest repeats and realleges the allegations contained in paragraphs 1 through 36
of this complaint as if fully set forth herein.
38. That based upon the circumstances stated above, Repwest maintains a founded belief
that the alleged injuries of the Claimants and any subsequent No-Fault treatments submitted by the
Medical Provider Defendants were not causally related to an insured incident.
39. That by reason of the foregoing, Repwest is entitled to a judgment declaring that the
Claimants and the Medical Provider Defendants proceeding as the purported assignees of the
Claimants have no rights to collect No-Fault benefits with respect to the October 25, 2010 collision.
FOR A SECOND CAUSE OF ACTION
40. Repwest repeats and realleges the allegations contained in paragraphs | through 39
of this complaint as if fully set forth herein.
41. That Claimants Clara Peguero De Hussein and Ericka Rogers breached conditions
precedent to coverage under the No-Fault regulations by failing to appear for IMEs on two occasions
each.
42. That these breaches of the No-Fault regulations relieve Repwest of any obligations
to pay the No-Fault claims of Claimants Clara Peguero De Hussein and Ericka Rogers, and the
Medical Provider Defendants asserting their claims as the purported assignees of Claimants Clara
Peguero De Hussein and Ericka Rogers.
43. That by reason of the foregoing, Repwest is entitled to a judgment declaring that
Claimants Clara Peguero De Hussein and Ericka Rogers, and the Medical Provider Defendants
proceeding as Claimants Clara Peguero De Hussein’s and Ericka Rogers’s purported assignees, have
no rights to collect No-Fault benefits with respect to the October 25, 2010 collision.
FOR A THIRD CAUSE OF ACTION
44, Repwest repeats and realleges the allegations contained in paragraphs | through 43
of this complaint as if fully set forth herein.
45. That Claimants Clara Peguero De Hussein and Ericka Rogers breached conditions
precedent to coverage under the No-Fault regulations by failing to appear for EUOs on two
occasions each.
46. That these breaches of the No-Fault regulations relieve Repwest of any obligations
to pay the No-Fault claims of Claimants Clara Peguero De Hussein and Ericka Rogers, and the
Medical Provider Defendants asserting their claims as the purported assignees of Claimants Clara
Peguero De Hussein and Ericka Rogers.
47. That by reason of the foregoing, Repwest is entitled to a judgment declaring that
Claimants Clara Peguero De Hussein and Ericka Rogers, and the Medical Provider Defendants
proceeding as Claimants Clara Peguero De Hussein’s and Ericka Rogers’s purported assignees, have
8
no rights to collect No-Fault benefits with respect to the October 25, 2010 collision.
FOR A FOURTH CAUSE OF ACTION
48. Repwest repeats and realleges the allegations contained in paragraphs | through 47
of this complaint as if fully set forth herein.
49. That Repwest will suffer irreparable harm if a permanent stay of all arbitrations,
lawsuits and/or claims by defendants is not issued pending the determination of this action.
50. That Repwest is therefore entitled to a judgment declaring a permanent stay of all
arbitrations, lawsuits and/or claims by defendants relating to No-Fault claims of the Claimants
arising from the October 25, 2010 collision referenced above.
WHEREFORE, plaintiff, Repwest Insurance Company, demands judgment as follows:
a. On the First Cause of Action against all defendants declaring that Repwest
owes no duty to pay No-Fault claims with respect to the October 25, 2010
collision referenced in this complaint;
On the Second Cause of Action against defendants Clara Peguero De Hussein
and Ericka Rogers and the Medical Provider Defendants asserting their
claims as the purported assignees of defendants Clara Peguero De Hussein
and Ericka Rogers, declaring that Repwest owes no duty to pay No-Fault
claims with respect to the October 25, 2010 collision referenced in this
complaint;
On the Third Cause of Action against defendants Clara Peguero De Hussein
and Ericka Rogers, and the Medical Provider Defendants asserting their
claims as the purported assignees of defendants Clara Peguero De Hussein
and Ericka Rogers, declaring that Repwest owes no duty to pay No-Fault
claims with respect to the October 25, 2010 collision referenced in this
complaint;
On the Fourth Cause of Action against all defendants permanently staying all
No-Fault lawsuits and arbitrations brought by the defendants pending the
outcome of this action relating to the October 25, 2010 collision referenced
in this complaint;
For costs and disbursements of this action; and
For such other and further relief as to the Court may seem just and proper.
DATED: New York, New York
June 20, 2012
Yours, etc.
RUBIN, FIORELLA & FRIEDMAN LLP
Attorneys for Plaintiff, Repwest Insurance
Company
630 Third Avenue, 3" Floor
New York, New York 10017
(212) 953-2381
crubin@rubinfiorella.com
Our File No.: 521-18217
10
ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
CHARLES T. RUBIN, an attorney duly admitted to practice law in the State of New York,
affirms:
That the undersigned is a member of the firm of Rubin, Fiorella & Friedman LLP, attorneys
of record for plaintiff, Repwest Insurance Company, in the within action; that the undersigned has
read the foregoing Verified Complaint and knows the contents thereof; that the same are true to
affirmant’s own knowledge, except as to those matters therein stated to be alleged on information
and belief; and as to those matters affirmant believes them to be true.
The undersigned further states that the reason this affirmation is made by the undersigned and
not by plaintiff is because said party does not reside or have a place of business in New York County,
where the affirmant’s office is located.
The grounds of affirmant’s belief as to all matters not stated to be upon affirmant’s own
knowledge are investigative material contained in affirmant’s file.
The undersigned affirms that the foregoing statements are true, under penalty of perjury.
DATED: New York, New York
June 20, 2012
CHARLES T. RUBIN
Index No.:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK.
Repwest Insurance Company,
Plaintiff,
-against-
Advanced Psychological Care, P.C., Arthur Diagnostic Medical, P.C., Auto RX, L.L.C., Broad Spectrum Physical
Therapy, P.C., Dynasty Medical Care, P.C., JJ & R Chiropractic, P.C., MB Precision Chiropractic, P.C., Anna
Meyerzon, New York Urological Services, P.C., New Wave Chiropractic, P.C., Ridgewood Diagnostics & Medical,
P.C., David M. Schwalb, M.D., SAS Medical, P.C., Socrates Medical Health, P.C., Vital Meridian Acupuncture,
P.C., Clara Peguero De Hussein, Silvestre Octavio Rodriguez, and Ericka Rogers,
Defendants.
SUMMONS AND VERIFIED COMPLAINT
RUBIN, FIORELLA & FRIEDMAN LLP
Attorneys for Plaintiff
Repwest Insurance Company
Office and Post Office Address
630 Third Avenue, 3rd Floor
New York NY 10017
212-953-2381
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State,
certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document
are not frivolous.
Dated: June 20, 2012 Signature.
PLEASE TAKE NOTICE
L]
Notice of
that the within is a (certified) true copy of a
entered in the office of the clerk of the within named Court on
Entry
O that an Order of which the within is a true copy will be presented for settlement to the
Hon. one of the judges of the within named Court,
Notice of
Settlement at
on sat
Dated:
RUBIN, FIORELLA & FRIEDMAN LLP
Attorneys for Plaintiff
Preview
INDEX NO. 153875/2012 (FILED: NEW YORK COUNTY CLERK 06/21/2012) NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/21/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SA CASA CEERI TS i ie TESS, Repwest Insurance Company, Index No.: Date Filed: Plaintiff, Plaintiff designates -against- NEW YORK COUNTY as the basis of venue Advanced Psychological Care, P.C., Arthur Diagnostic Medical, P.C., Auto RX, L.L.C., Broad Spectrum Physical SUMMONS Therapy, P.C., Dynasty Medical Care, P.C., J&R Chiropractic, P.C., MB Precision Chiropractic, P.C., Anna Meyerzon, New York Urological Services, P.C., New The basis of venue is Wave Chiropractic, P.C., Ridgewood Diagnostics & CPLR 509 Medical, P.C., David M. Schwalb, M.D., SAS Medical, P.C., Socrates Medical Health, P.C., Vital Meridian Acupuncture, P.C., Clara Peguero De Hussein, Silvestre Octavio Rodriguez, and Ericka Rogers, Defendants. ii ite end miei ei iit iene ainrsnosennecnent nt TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a Notice of Appearance, on the plaintiff's attorneys within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this Summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. DATED: New York, New York June 20, 2012 Yours, etc., RUBIN, FIORELLA & FRIEDMAN LLP Charles T. Rubin, Esq. 630 Third Avenue, 3 Floor New York, New York 10017 (212) 953-2381 Our File: 521-18217 Ridgewood Diagnostics & Medical, P.C. C/O Listrom & Associates 73 Gleneida Avenue Carmel, New York 10512 David M. Schwalb, M.D. 234 East 149" Street Bronx, New York 10451 SAS Medical, P.C. 63-12 Bourton Street Rego Park, New York 11374 Socrates Medical Health, P.C. 200 West Tremont Avenue Bronx, New York 10453 Vital Medical Acupuncture, P.C. 2300 Arthur Avenue Bronx, New York 10458 Clara Peguero De Hussein 323 East Mosholu Parkway North, Apt. 1C Bronx, New York 10467 Silvestre Octavio Rodriguez 240 175" Street, Apt. 109 Bronx, New York 10457 Ericka Rogers 2430 Marion Avenue, Apt. 6C Bronx, New York 10458 DEFENDANTS’ ADDRESSES: Advanced Psychological Care, P.C. 62 Whitman Drive Brooklyn, New York 11234 Arthur Diagnostic Medical, P.C. 2309 Arthur Avenue Bronx, New York 10458 Auto RX, L.L.C. 145 South 400 East Salt Lake City, Utah 84111 Broad Spectrum Physical Therapy, P.C. C/O Anna Meyerzon 115 Cuba Avenue Staten Island, New York 10306 Dynasty Medical Care, P.C. 68 South Service Road, Suite 100 Melville, New York 11747 JJ & R Chiropractic 389 Roosevelt Avenue Freeport, New York 11520 MB Precision Chiropractic, P.C. 2413 Babylon Street Wantagh, New York 11793 Anna Meyerzon 115 Cuba Avenue Staten Island, New York 10306 New York Urological Services, P.C. St. Barnabas Hospital 183 Third Avenue Bronx, New York 10452 New Wave Chiropractic, P.C. 135 Eastern Parkway, No. 14 Brooklyn, New York 11238 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wee ee ee ene ee ee ee ee ee eee eee Repwest Insurance Company, Index No.: Plaintiff, VERIFIED COMPLAINT -against- Advanced Psychological Care, P.C., Arthur Diagnostic Medical, P.C., Auto RX, L.L.C., Broad Spectrum Physical Therapy, P.C., Dynasty Medical Care, P.C., JJ & R Chiropractic, P.C., MB Precision Chiropractic, P.C., Anna Meyerzon, New York Urological Services, P.C., New Wave Chiropractic, P.C., Ridgewood Diagnostics & Medical, P.C., David M. Schwalb, M.D., SAS Medical, P.C., Socrates Medical Health, P.C., Vital Meridian Acupuncture, P.C., Clara Peguero De Hussein, Silvestre Octavio Rodriguez, and Ericka Rogers, Defendants. = % ss aa - xX Plaintiff, by its attorneys, Rubin, Fiorella & Friedman LLP, alleges upon information and belief as follows: THE PARTIES 1 That at all times herein, plaintiff, Repwest Insurance Company (“Repwest”), has been and still is a foreign corporation and is duly authorized by the State of New York to conduct the business of insurance. 2 That at all times herein, defendant Advanced Psychological Care, P.C., 62 Whitman Drive, Brooklyn, New York 11234, has been and still is a New York State professional corporation. 3 That at all times herein, defendant Arthur Diagnostic Medical, P.C., 2309 Arthur Avenue, Bronx, New York 10458, has been and still isa New York State professional corporation. 4 That at all times herein, defendant Auto RX, L.L.C., 145 South 400 East, Salt Lake City, Utah 84111, was a Utah limited liability company which transacted business and supplied services within New York State. 5 That at all times herein, defendant Broad Spectrum Physical Therapy, P.C., c/o Anna Meyerzon, 115 Cuba Avenue, Staten Island, New York 10306, has been and still is a New York State professional corporation. 6 That at all times herein, defendant Dynasty Medical Care, P.C., 68 South Service Road, Suite 100, Melville, New York 11747, has been and still is a New York State professional corporation, 7 That at all times herein, defendant JJ & R Chiropractic, P.C., 389 Roosevelt Avenue, Freeport, New York 11520, has been and still is a New York State professional corporation. 8 That at all times herein, defendant MB Precision Chiropractic, P.C., 2413 Babylon Street, Wantagh, New York 11793, has been and still is a New York State professional corporation. 9 That at all times herein, defendant Anna Meyerzon, 115 Cuba Avenue, Staten Island, New York 10306, has been and still is a New York State resident. 10. That at all times herein, defendant New York Urological Services, P.C., St. Barnabas Hospital, 183 Third Avenue, Bronx, New York 10452, has been and still is a New York State professional corporation. ll. That at all times herein, defendant New Wave Chiropractic, P.C., 135 Eastern Parkway, No. 1-I, Brooklyn, New York 11238, has been and still is a New York State professional corporation. 12. That at all times herein, defendant Ridgewood Diagnostics & Medical, P.C., c/o Listrom & Associates, 73 Gleneida Avenue, Carmel, New York 10512, was a New York State professional corporation dissolved in 2010, which nevertheless continued to transact business and supply services within New York State. 13. That at all times herein, defendant David M. Schwalb, M.D., 234 East 149" Street, Bronx, New York 10451, has been and still is a New York State resident. 2 14, That at all times herein, defendant SAS Medical, P.C., 63-12 Bourton Street, Rego Park, New York 11374, has been and still is a New York State professional corporation. 15. That at all times herein, defendant Socrates Medical Health, P.C.,200 West Tremont Avenue, Bronx, New York 10453, has been and still is a New York State professional corporation. 16. That at all times herein, defendant Vital Meridian Acupuncture, P.C., 2300 Arthur Avenue, Bronx, New York 10458, has been and still is a New York State professional corporation. 17. That at all times herein, defendant Clara Peguero De Hussein, 323 East Mosholu Parkway North, Apt. 1C, Bronx, New York 10467, has been and still is a New York State resident. 18. That at all times herein, defendant Silvestre Octavio Rodriguez, 240 175" Street, Apt. 109, Bronx, New York 10457, has been and still is a New York State resident. 19, That at all times herein, defendant Ericka Rogers, 2430 Marion Avenue, Apt. 6C, Bronx, New York 10458, has been and still is a New York State resident. THE DEFENDANTS’ SPECIOUS NO-FAULT CLAIMS 20. That defendants Clara Peguero De Hussein, Silvestre Octavio Rodriguez, and Ericka Rogers (collectively, the “Claimants”) allegedly were the occupants of a U-Haul truck, insured by Repwest, which allegedly collided with an elevated railroad support beam on October 25, 2010 at or near the intersection of Jerome Avenue and 205th Street in Bronx, New York. The police report indicates that the Claimants reported no physical injury at the scene, had no visible physical injury, refused medical attention at the scene, that the vehicle sustained no damage, and that airbags did not deploy. 21. That despite these circumstances, the Claimants later reported to have sustained bodily injuries in this collision. Repwest assigned claim number 00274286-2010 to all No-Fault claims relating to the October 25, 2010 collision. 22. That under 11 N.Y.C.R.R. 65-1.1, which governs No-Fault claims for these Claimants, the “New York Mandatory Personal Injury Protection Endorsement” of the regulation requires that insurers such as Repwest provide No-Fault benefits to persons injured in the use or operation of vehicles in New York State, subject to certain conditions and terms. The “conditions” provision of the New York Mandatory Personal Injury Protection endorsement states: Conditions Action Against Company. 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. * * * ... Upon request by the Company, the eligible injured person or that person’s assignee or representative shall: * * * (b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same; * (d) provide any other pertinent information that may assist the Company in determining the amount due and payable. The eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require. 23. That the “exclusions” provision of the New York Mandatory Personal Injury Protection endorsement states: Exclusions This coverage does not apply to personal injury sustained by: * * * () any person who intentionally causes his or her own personal injury. 24. That in addition, 11 N.Y.C.R.R. 65-3.5(c) provides that: “the insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” 25. That the Claimants were persons who allegedly sustained personal injuries arising out of the use or operation of the insured motor vehicle and allegedly began receiving medical treatment from defendants Advanced Psychological Care, P.C., Arthur Diagnostic Medical, P.C., Auto RX, L.L.C., Broad Spectrum Physical Therapy, P.C., Dynasty Medical Care, P.C., JJ & R Chiropractic, P.C., MB Precision Chiropractic, P.C., Anna Meyerzon, New York Urological Services, P.C., New Wave Chiropractic, P.C., Ridgewood Diagnostics & Medical, P.C., David M. Schwalb, M.D., SAS Medical, P.C., Socrates Medical Health, P.C., and Vital Meridian Acupuncture, P.C. (collectively, the “Medical Provider Defendants”). 26. That Repwest received numerous claims from the Medical Provider Defendants seeking to recover No-Fault benefits as the alleged assignees of the Claimants. Notwithstanding the facts that the Claimants reported no physical injury at the scene, had no visible physical injury, refused medical attention at the scene, that the vehicle sustained no damage, and that airbags did not deploy, the Medical Provider Defendants, to date, have submitted tens of thousands of dollars in No- Fault claims as the alleged assignees of the Claimants, exclusive of interest and attorney’s fees. 27. That these factors raised a strong probability that the October 25, 2010 loss was staged or intentionally caused and/or that the treatments submitted were not related to the collision, both of which would be considered non-covered events under the No-Fault regulations. DEFENDANTS’ VIOLATIONS OF THE NO-FAULT REGULATIONS 28. That based upon these factors, Repwest, pursuant to its rights under the No-Fault regulations, duly and properly sought verification of the October 25, 2010 collision claims by requesting the Independent Medical Examinations (“IME”) of the Claimants to confirm the legitimacy of this loss and the alleged medical treatment. 29, That despite due demand, Claimants Clara Peguero De Hussein and Ericka Rogers failed to appear for their scheduled IMEs on two occasions each. These failures to appear were violations of the No-Fault regulations and violations of conditions precedent to coverage for all No- Fault claims submitted. 30. That based upon these factors, Repwest, pursuant to its rights under the No-Fault regulations, duly and properly sought verification of these claims by requesting the Examinations Under Oath (“EUO”) of the Claimants to confirm the legitimacy of this loss and the alleged medical treatment. 31. That despite due demand, Claimants Clara Peguero De Hussein and Ericka Rogers failed to appear for their scheduled EUOs on two occasions each. These failures to appear were violations of the No-Fault regulations and violations of conditions precedent to coverage for all No- Fault claims submitted. 32. That Claimant Silvestre Octavio Rodriguez appeared for his EUO. However, his testimony raised issues as to the legitimacy and medical necessity of his purported medical treatment. In particular, given the facts that the police report indicates that he reported no physical injury at the scene, had no visible physical injury, refused medical attention at the scene, that the vehicle sustained no damage, and that airbags did not deploy, it is unlikely that the purported accident would have produced the kinds of injuries that required him to seek physical therapy, acupuncture and chiropractic treatment five or four times per week and a psychologist once a week for more than four months, as he testified. These factors further contributed to a strong probability that Claimant Silvestre Octavio Rodriguez’s submitted treatment was not related to the October 25, 2010 collision. 33. That the defendants have commenced or will commence legal actions or file for arbitrations against Repwest seeking money damages for No-Fault claims that Repwest properly has denied, as detailed above. 34. That Repwest requires and requests a declaration of the rights and other legal relations of the respective parties in accordance with the applicable laws relating to declaratory judgment. 35. That Repwest has no adequate remedy at law. 36. That Repwest has not previously sought the relief requested herein in this or any other Court. FOR A FIRST CAUSE OF ACTION 37. Repwest repeats and realleges the allegations contained in paragraphs 1 through 36 of this complaint as if fully set forth herein. 38. That based upon the circumstances stated above, Repwest maintains a founded belief that the alleged injuries of the Claimants and any subsequent No-Fault treatments submitted by the Medical Provider Defendants were not causally related to an insured incident. 39. That by reason of the foregoing, Repwest is entitled to a judgment declaring that the Claimants and the Medical Provider Defendants proceeding as the purported assignees of the Claimants have no rights to collect No-Fault benefits with respect to the October 25, 2010 collision. FOR A SECOND CAUSE OF ACTION 40. Repwest repeats and realleges the allegations contained in paragraphs | through 39 of this complaint as if fully set forth herein. 41. That Claimants Clara Peguero De Hussein and Ericka Rogers breached conditions precedent to coverage under the No-Fault regulations by failing to appear for IMEs on two occasions each. 42. That these breaches of the No-Fault regulations relieve Repwest of any obligations to pay the No-Fault claims of Claimants Clara Peguero De Hussein and Ericka Rogers, and the Medical Provider Defendants asserting their claims as the purported assignees of Claimants Clara Peguero De Hussein and Ericka Rogers. 43. That by reason of the foregoing, Repwest is entitled to a judgment declaring that Claimants Clara Peguero De Hussein and Ericka Rogers, and the Medical Provider Defendants proceeding as Claimants Clara Peguero De Hussein’s and Ericka Rogers’s purported assignees, have no rights to collect No-Fault benefits with respect to the October 25, 2010 collision. FOR A THIRD CAUSE OF ACTION 44, Repwest repeats and realleges the allegations contained in paragraphs | through 43 of this complaint as if fully set forth herein. 45. That Claimants Clara Peguero De Hussein and Ericka Rogers breached conditions precedent to coverage under the No-Fault regulations by failing to appear for EUOs on two occasions each. 46. That these breaches of the No-Fault regulations relieve Repwest of any obligations to pay the No-Fault claims of Claimants Clara Peguero De Hussein and Ericka Rogers, and the Medical Provider Defendants asserting their claims as the purported assignees of Claimants Clara Peguero De Hussein and Ericka Rogers. 47. That by reason of the foregoing, Repwest is entitled to a judgment declaring that Claimants Clara Peguero De Hussein and Ericka Rogers, and the Medical Provider Defendants proceeding as Claimants Clara Peguero De Hussein’s and Ericka Rogers’s purported assignees, have 8 no rights to collect No-Fault benefits with respect to the October 25, 2010 collision. FOR A FOURTH CAUSE OF ACTION 48. Repwest repeats and realleges the allegations contained in paragraphs | through 47 of this complaint as if fully set forth herein. 49. That Repwest will suffer irreparable harm if a permanent stay of all arbitrations, lawsuits and/or claims by defendants is not issued pending the determination of this action. 50. That Repwest is therefore entitled to a judgment declaring a permanent stay of all arbitrations, lawsuits and/or claims by defendants relating to No-Fault claims of the Claimants arising from the October 25, 2010 collision referenced above. WHEREFORE, plaintiff, Repwest Insurance Company, demands judgment as follows: a. On the First Cause of Action against all defendants declaring that Repwest owes no duty to pay No-Fault claims with respect to the October 25, 2010 collision referenced in this complaint; On the Second Cause of Action against defendants Clara Peguero De Hussein and Ericka Rogers and the Medical Provider Defendants asserting their claims as the purported assignees of defendants Clara Peguero De Hussein and Ericka Rogers, declaring that Repwest owes no duty to pay No-Fault claims with respect to the October 25, 2010 collision referenced in this complaint; On the Third Cause of Action against defendants Clara Peguero De Hussein and Ericka Rogers, and the Medical Provider Defendants asserting their claims as the purported assignees of defendants Clara Peguero De Hussein and Ericka Rogers, declaring that Repwest owes no duty to pay No-Fault claims with respect to the October 25, 2010 collision referenced in this complaint; On the Fourth Cause of Action against all defendants permanently staying all No-Fault lawsuits and arbitrations brought by the defendants pending the outcome of this action relating to the October 25, 2010 collision referenced in this complaint; For costs and disbursements of this action; and For such other and further relief as to the Court may seem just and proper. DATED: New York, New York June 20, 2012 Yours, etc. RUBIN, FIORELLA & FRIEDMAN LLP Attorneys for Plaintiff, Repwest Insurance Company 630 Third Avenue, 3" Floor New York, New York 10017 (212) 953-2381 crubin@rubinfiorella.com Our File No.: 521-18217 10 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) CHARLES T. RUBIN, an attorney duly admitted to practice law in the State of New York, affirms: That the undersigned is a member of the firm of Rubin, Fiorella & Friedman LLP, attorneys of record for plaintiff, Repwest Insurance Company, in the within action; that the undersigned has read the foregoing Verified Complaint and knows the contents thereof; that the same are true to affirmant’s own knowledge, except as to those matters therein stated to be alleged on information and belief; and as to those matters affirmant believes them to be true. The undersigned further states that the reason this affirmation is made by the undersigned and not by plaintiff is because said party does not reside or have a place of business in New York County, where the affirmant’s office is located. The grounds of affirmant’s belief as to all matters not stated to be upon affirmant’s own knowledge are investigative material contained in affirmant’s file. The undersigned affirms that the foregoing statements are true, under penalty of perjury. DATED: New York, New York June 20, 2012 CHARLES T. RUBIN Index No.: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK. Repwest Insurance Company, Plaintiff, -against- Advanced Psychological Care, P.C., Arthur Diagnostic Medical, P.C., Auto RX, L.L.C., Broad Spectrum Physical Therapy, P.C., Dynasty Medical Care, P.C., JJ & R Chiropractic, P.C., MB Precision Chiropractic, P.C., Anna Meyerzon, New York Urological Services, P.C., New Wave Chiropractic, P.C., Ridgewood Diagnostics & Medical, P.C., David M. Schwalb, M.D., SAS Medical, P.C., Socrates Medical Health, P.C., Vital Meridian Acupuncture, P.C., Clara Peguero De Hussein, Silvestre Octavio Rodriguez, and Ericka Rogers, Defendants. SUMMONS AND VERIFIED COMPLAINT RUBIN, FIORELLA & FRIEDMAN LLP Attorneys for Plaintiff Repwest Insurance Company Office and Post Office Address 630 Third Avenue, 3rd Floor New York NY 10017 212-953-2381 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: June 20, 2012 Signature. PLEASE TAKE NOTICE L] Notice of that the within is a (certified) true copy of a entered in the office of the clerk of the within named Court on Entry O that an Order of which the within is a true copy will be presented for settlement to the Hon. one of the judges of the within named Court, Notice of Settlement at on sat Dated: RUBIN, FIORELLA & FRIEDMAN LLP Attorneys for Plaintiff