Preview
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------x AFFIRMATION IN SUPPORT
LIBERTY MUTUAL INSURANCE COMPANY OF MOTION FOR DEFAULT
and LM GENERAL INSURANCE COMPANY, JUDGMENT
Plaintiffs
Index No.: 652678/2018
-against –
MOSHE ZIRKIEV
“Individual Defendant,"
-and-
ADVANCED RECOVERY EQUIPMENT AND
SUPPLIES LLC,
ANESTHESIA SOLUTIONS P.C.,
BARRY DUBLIN MD,
MLJ CHIROPRACTIC P.C.,
ORTHOCARETECH INC.,
PROTECHMED INC,
QUALITY ORTHOPEDICS AND COMPLETE
JOINT CARE P.C.,
QUEST DIAGNOSTICS INCORPORATED,
RIGHT HAND MEDICAL ASSIST L.L.C.,
ROBERT MALAKOV, PHYSICIAN, P.C.,
ROXBURY ANESTHESIA, LLC,
SOUTHWEST NASSAU RADIOLOGY, P.C.,
STILLWELL CHIROPRACTIC P.C.,
SURGICORE OF NEW JERSEY CITY, LLC.,
VALUECARE PHARMACY INC.,
VIRGINIA FERRIGNO, LMT,
"Medical Provider Defendants"
collectively, the Defendants.
--------------------------------------------------------------------x
Erin Grover, an attorney duly admitted to practice before the Courts of the State of New
York, hereby affirms the following under penalties of perjury and pursuant to CPLR 2106:
1. I am associated with Burke, Conway & Stiefeld, attorneys for the Plaintiffs and as
such, am fully familiar with all the facts and circumstance set forth herein based upon a review of
the file maintained by this office.
2. Plaintiffs, hereinafter collectively referred to as “Liberty Mutual,” are insurance
1 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
entities that have issued insurance policies in the State of New York.
3. This motion is respectfully submitted in support of the within application for
Default Judgment against Moshe Zirkiev for failure to appear in court, and against the non-
answering Defendants for failure to respond to the instant lawsuit, granting Plaintiffs the declaration
they seek that the Plaintiffs’ denials of the claims of the Individual Defendants are valid.
4. No prior motion for the relief requested herein has been made to this or any court.
5. So far as is relevant to the instant application, the underlying action is for a
declaration to nullify any and allNo-Fault benefits allegedly due to any of the Medical Provider
Defendants on assignment from the Individual Defendant, Moshe Zirkiev (hereinafter, “Zirkiev”).
6. This action arises out of claims for No-Fault reimbursement stemming from a motor
vehicle accident involving Zirkiev on May 23, 2017 (hereinafter referred to as “the occurrence”).
7. The policy in question was issued to Louba Zirkiev and Khibor Zirkiev under policy
number AOS22815352640 effective April 8, 2017 through April 8, 2018 with limits of no-fault
medical bill coverage of $50,000 per person.
8. According to the police report, the accident occurred the accident occurred on May 23,
2017, at Queens Boulevard and 68th St., Queens, NY. Moshe Zirkiev’s 2004 Lexus sedan was parked
on Queens Boulevard at 68th Street when a truck owned and registered to Call A Head Corp. was
traveling westbound on Queens Blvd. and allegedly side-swiped Zirkiev’s vehicle and fled the scene.
9. Following the occurrence, Zirkiev began seeking medical treatment for his alleged
injuries.
10. The Medical Provider Defendants then submitted bills on assignment from Zirkiev
to the Plaintiffs seeking No-Fault and bodily injury reimbursement.
11. The following Medical Provider Defendants submitted bills for Zirkiev:
2 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
All Billing for Zirkiev:
ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC $1,244.73
ANESTHESIA SOLUTIONS P.C. $148.69
BARRY DUBLIN MD $503.01
MLJ CHIROPRACTIC P.C. $939.18
ORTHOCARETECH INC. $2,567.50
PROTECHMED INC $632.32
QUALITY ORTHOPEDICS AND COMPLETE JOINT CARE P.C. $12,354.77
QUEST DIAGNOSTICS INCORPORATED $177.94
RIGHT HAND MEDICAL ASSIST L.L.C. $2,423.73
ROBERT MALAKOV, PHYSICIAN, P.C. $5,739.56
ROXBURY ANESTHESIA, LLC $2,100.00
SOUTHWEST NASSAU RADIOLOGY, P.C. $3,549.07
STILLWELL CHIROPRACTIC P.C. $54.73
SURGICORE OF NEW JERSEY CITY, LLC. $8,265.42
VALUECARE PHARMACY INC. $548.78
VIRGINIA FERRIGNO, LMT $80.68
Total Billing $41,330.11
12. The total medical billing under the claim to date is $41,330.11.
13. In the instant case, default judgment is appropriate because (a) the Non-Answering
Defendants failed to answer and appear in this action; (b) Individual Defendant Zirkiev failed to
appear for his scheduled EUOs; (c) Individual Defendant Zirkiev failed to appear for court; and (d)
it is a matter of law that the Medical Provider Defendants stand in the shoes of the Individual
Defendant and as assignees acquire no greater rights than Individual Defendant Zirkiev.
14. Plaintiffs filed a Summons and Complaint against the Medical Provider Defendants
and Individual Defendant Zirkiev seeking a declaratory judgment pursuant to CPLR § 3017(b)
defining and declaring the rights, duties, obligations and legal relationships by and between the
Plaintiffs and the named Defendants, which included the Medical Provider Defendants. A copy of
the Summons and Complaint are annexed hereto as Exhibit “A”.
3 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
15. Plaintiffs served the Defendants with the Summons and Complaint. Copies of the
affidavits of service for service of the Summons and Complaint upon the Defendants are annexed
hereto as Exhibit “B”.
16. Pursuant to CPLR § 3215 (g)(4)(i) additional service of the Summons and Complaint
was made by first class mail to the last known addresses as listed in the Summons of all Defendants
at or subsequent to the time of service through the Secretary of State. A copy of the affidavit of
service for the additional mailings of the Summons and Complaint are annexed hereto as Exhibit
“C”.
17. It should be noted that, as of 30 days from the filing of this motion, Individual
Defendant Moshe Zirkiev was not enrolled in active military service as determined by a search of the
Department of Defense military database. Attached hereto as Exhibit “D” isthe affidavit of the
SIU attorney who conducted the search of the Individual Defendant’s military service.
18. The following Defendants (hereinafter “the Non-Answering Defendants”) have
failed to answer the Summons and Complaint:
ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC
ANESTHESIA SOLUTIONS P.C.,
BARRY DUBLIN MD
ROXBURY ANESTHESIA, LLC
SOUTHWEST NASSAU RADIOLOGY, P.C.
SOUTHWEST NASSAU RADIOLOGY, P.C.,
SURGICORE OF NEW JERSEY CITY, LLC.
VALUECARE PHARMACY INC.
19. Plaintiffs request the Court to issue a Default Judgment against the Non-Answering
Defendants for failure to timely Answer the Complaint.
20. Individual Defendant Moishe Zirkeiv filed an answer on July 23, 2018. A copy of his
answer is annexed hereto as Exhibit “E”.
21. Medical Provider Defendants Robert Malakov Physician, PC, MLJ Chiropractic, PC,
Protechmed Inc., filed their answers. Copies of the same are also annexed hereto as Exhibit “E”.
4 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
22. Plaintiffs filed Stipulations of Discontinuance as to MLJ Chiropractic, PC,
Orthocaretech Inc., Quest Diagnostics Incorporated, and Robert Malakov, Physician, PC. See
Exhibit “F” annexed hereto.
23. The No-Fault reimbursement laws of the State of New York call for the swift
payment of medical billsby the insurer of the vehicle involved in the motor vehicle accident but
permit the insurer to disallow payments for those not medically necessary, those medical billsfor
treatment unrelated to the accident, or those for which there is no coverage. Further, it allows
providers to conduct reasonable investigation and require Examinations under Oath of the parties to
determine the legitimacy of the claims.
24. An investigation into the claim was begun due to the loss facts and concerns of
Moshe Zirkiev’s treatment. Khibor Zirkiev, Zirkiev’s father and policy holder, stated to Liberty that
Moshe Zirkiev was only in the driver’s seat at the time of the alleged accident because his father got
out of the car to go into E&K Auto Repair and told his son to sitin the driver’s seat should the
vehicle have to be moved from where it was parked on Queens Boulevard. Prior to Zirkiev’s father
returning to the car, the vehicle was side swiped by a truck who fled the scene while the Individual
Defendant was in the driver’s seat. Louba Zirkiev, a policyholder and mother of Moshe Zirkiev,
gave a different version of the events leading up to the accident. She claims that she had driven to
the shop and they were waiting for someone to come out. They were waiting in a no parking area so
she told Moshe Zirkiev to seat in the driver’s seat as she exited the car. As part of the investigation,
Moshe Zirkiev was asked to appear for an Examination under Oath (EUO). An Affidavit of the
Claims Specialist who requested the EUOs to verify the treatment and facts of the loss is annexed
hereto as Exhibit “G”.
25. EUOs were properly scheduled for Moshe Zirkiev on September 20, 2017 and
November 9, 2017. Letters scheduling the EUOs were sent to Zirkiev and his attorney on August 7,
5 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
2017, September 28, 2017, and October 24, 2017. Moshe Zirkiev did not appear for any of the
scheduled EUOs despite proper notification letters to Zirkiev and his attorney. Zirkiev failed to
cooperate with Plaintiffs by failing to appear for two scheduled EUOs despite proper notifications.
The EUO notification letters dated August 7, 2017, September 28, 2017, and October 24, 2017 are
attached hereto as Exhibit “H”.
26. Based on the misrepresentation of the facts and circumstances of the accident and
the failure to appear for his Examinations Under Oath, Plaintiffs timely denied all bills submitted by
the Medical Provider Defendants. The EUO no-show transcript and affirmation of the appearing
attorney evidencing Moshe Zirkiev’s failure to appear for his properly scheduled EUOs are annexed
collectively hereto as Exhibit “I”.
27. Moreover, Individual Defendant Moshe Zirkiev, refused, by his actions or lack
thereof, to produce any of the documents requested that were listed on the EUO notification letters
for his two scheduled EUOs. The plaintiffs’ request for documentation pre-EUO would have
provided information that is germane as to the events of the claimed occurrence. See Exhibit “H”.
28. An Examination Under Oath tool is a verification demand that the insurer has in
order to weed out fraudulent claims of all concerns, be it the staged accident, medical clinics that are
fraudulent or claimants that have procured their policies fraudulently. The EUO requirement is a
condition precedent to coverage. As to conditions precedent generally, one court noted,
“In other scenarios under the No-Fault Law, the courts have dismissed
claims brought by service providers based upon a breach of a condition
precedent by the assignee. Thus, a claim will be dismissed based upon an
insurer's assertion of lack of coverage defense that is premised upon an
investigator's unrefuted assertion of a “fact or founded belief” that the
alleged injury did not arise out of an insured incident. See Central
General Hosp. v. Chubb, 90 N.Y.2d 195 (1997); A.B. Med. Servs. PLLC
v. State Farm Mutual Auto Ins., 2004 NY. Slip Op. 50638(U), 4 Misc.3d
129(A) (App. Term, 2 & 11th Jud. Depts. 2004); A.B. Med. Servs. PLLC
v. State Farm Mutual Auto Ins., 7 Misc.3d 822 (Civil Ct., Kings CO.
2005). In the latter case, the court determined, after trial, that the
assignors had been involved in staged collisions thus negating any policy
6 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
of coverage by State Farm. While there was no evidence that the plaintiff
assignor participated in the fraud or that the fraud should be imputed to
the assignor, “plaintiffs would be the primary beneficiaries of (the)
fraud” were they allowed to recover. A.B. Med, supra, 7 Misc.3d at 832.
Moreover, “an assignee stands in the shoes of the assignor.” Id., citing
Arena Constru. Co. v. J. Sackaris & Sons, 282 A.D.2d 489 (2d
Dept.2001).
Quality Psychological Services, P.C. v. New York Cent. Mut.
Fire Ins. Co., 29 Misc.3d 1228(A), (N.Y. City Civ. Ct., 2010).
29. The theme whereby the claimant fails to complete the condition precedent is never
more in play when he fails to appear for the requested Independent Medical Examination (“IME”)
or as in this instance, the requested Examination under Oath (“EUO”). In Unitrin Advantage Ins.
Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1stDept, 2011), the
Appellate Division, First Department held
“The failure to appear for IMEs requested by the insurer “when, and as
often as, [it] may reasonably require” (Insurance Department
Regulations [11 NYCRR] § 65–1.1) is a breach of a condition precedent
to coverage under the No–Fault policy, and therefore fits squarely
within the exception to the preclusion doctrine, as set forth in Central
Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d
246, 681 N.E.2d 413 [1997]. Accordingly, when defendants' assignors
failed to appear for the requested IMEs, plaintiff had the right to deny
all claims retroactively to the date of loss, regardless of whether the
denials were timely issued (See Insurance Department Regulations [11
NYCRR] § 65–3.8 [c]; Fogel, 35 A.D.3d at 721–22, 827 N.Y.S.2d 217).”
Unitrin Advantage, at 1.
30. There is no doubt that the requirement for an appearance at the EUO also would
have a similar result as in Unitrin. In Crotona Heights Medical, P.C. v. Farm Family Cas. Ins. Co., 27
Misc.3d 134(A), 910 N.Y.S.2d 404 N.Y. Sup. App. Term, 2010, 2nd, 11th and 13th Judicial Districts,
the court held,
“The appearance of the eligible injured person's assignee at an EUO
upon a proper request is a condition precedent to the insurer's liability
on the policy (See Insurance Department Regulations [11 NYCRR] § 65–
1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z
Acupuncture, P.C., 24 Misc.3d 142[A], 2009 N.Y. Slip Op 51732[U]).”
Crotona Heights Medical, P.C., at 1.
7 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
31. In Allstate Ins. Co. v. Pierre, 123 A.D.3d 618 (1st Dept. 2014) the Court held that
insureds breached condition precedent to coverage by failing to appear, as required by policies, at
their first and second scheduled examinations under oath.
32. Plaintiffs demonstrated their entitlement to a Default Judgment against the
Defendants by submitting proof of service of the summons and complaint, proof of the facts
constituting its claim, and proof of the Defendants’ default in answering or appearing (see CPLR
3215[f]; Mercury Cas. Co. v. Surgical Center at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218
(2nd Dept., 2009). See also, C & H Import & Export, Inc. v. MNA Global, Inc., 79 A.D.3d 784, 912
N.Y.S.2d 428 (2nd Dept., 2010). Proof of Service is set forth through the Affidavits of Service
attached to this motion. Those Medical Provider Defendants who were served with the Summons
and Complaint by service through the Secretary of State were also served with the Summons and
Complaint by regular mail to their last known address at the time that they were being served
through the Secretary of State. See Exhibits “B-C.” Plaintiffs’ timely denials are annexed hereto as
Exhibit “J”.
33. On January 6, 2020, following the filing of a Stipulation of Discontinuance with
regard to MLJ Chiropractic PC and Robert Malakov, Physician, PC in this matter, this Court set a
status conference for January 17, 2020 at 11:00 a.m. See Exhibit “K”, Order dated January 6, 2020.
Moshe Zirkiev was notified of this conference via E-mail Service from efile@nycourts.gov. Moshe
Zirkiev failed to appear in court on January 17, 2020 for the case conference. See Exhibit “L,”
Order of Court dated January 17, 2020 with Notice of Entry and Affidavit of Service. In this Order,
the Court set a status conference for February 27, 2020 at 9:30 a.m. and further ordered that with
regard to any named parties that fail to appear at said conference, a default judgment may be granted
against them and/or their claims may be dismissed pursuant to 22 NYCRR 202.27. Moshe Zirkiev
was notified of this conference via E-mail Service from efile@nycourts.gov. Moshe Zirkiev failed to
8 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
appear in court on February 27, 2020. See Exhibit “M”, Order dated February 27, 2020. Therefore,
a default against Moshe Zirkiev is proper for his failure to appear at two properly-noticed case
conferences in this matter and pursuant to this Court’s Order dated January 17, 2020.
Should Default Judgment and a Permanent Stay Be Denied, the Plaintiffs Should Be
Granted an Order issuing a Preliminary Injunction Staying All Cases in
Any Court of the State of New York with Regard to the Defaulting Defendants
34. Plaintiffs are entitled to defend any claim, regardless of initial denial, whenever there
is a “lack of coverage defense”. Cen Gen Hosp. v. Chubb Ins., 90 N.Y.2d 195 (1997); Zappone v.
Home Ins., 55 N.Y.2d 131 (1982); Albert Schiff Assoc. v. Flack, 51 N.Y.2d 692 (1980); Metro Med.
v. Eagle 293, A.D.2d 751 (2d Dep’t 2002). Coverage cannot be invented after the fact. It must exist
initially or it does not exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185
[2000]; CGU Ins. v. Guadagno, 280 AD2d 509 [2d Dept 2001].
35. CPLR §3001 provides: “The Supreme Court may render a declaratory judgment
having the effect of a final judgment as to the rights and other legal relations of the parties to a
justiciable controversy whether or not further relief is or could be claimed. If the Court declines to
render such a judgment it shall state its grounds.”
36. In addition, CPLR §602(a) provides for consolidation of actions in appropriate
circumstances as follows: “When actions involving a common question of law or fact are pending
before a court, the Court, upon motion, may order a joint trialof any or all matters in issue, may
order the actions consolidated, and may make such other orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay.”
37. Generally, Plaintiffs concede that No-Fault benefit claims should not be
consolidated unless the facts and circumstances arise from a common accident. Metro Medical
Diagnostics, P.C. v. Motor Vehicle Accident Indemnity Corp., 6 Misc.3d 136[A], 2005 N.Y. Slip Op
50238[U] [2005]; Poole v. Allstate Ins. Co., 20 AD3d 518, 519 [2d Dept. 2006]; Kipor Medicine,
9 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
P.C. v. GEICO., 28 Misc.3d 129(A) [App Term, 2d, 11th, & 13th Jud Dists 2010]. However, the
claims of the Defendants are of the type that requires consolidation. Therefore, in the first instance,
any and all No-Fault claims separately filed in either court or arbitration as assignee of the Individual
and Insured Defendants should be consolidated together and all of them resolved herein based on a
determination as to whether the Plaintiffs’ denials are valid. Therefore, the Plaintiffs’ request for a
Preliminary Injunction in effect staying all cases and arbitrations must be granted. Plaintiffs’ timely
denials are annexed hereto as Exhibit “J”.
38. A preliminary injunction may issue only if the moving party can demonstrate (1) the
likelihood of success on the merits; (2) irreparable injury if the preliminary injunction is not granted,
and (3) a balancing of the equities in its favor. (See St. Paul Travelers Ins. Co. v. Nandi, 15 Misc.3d
1145(A), 7 [2007] citing Doe v. Axelrod, 73 NY2d 748 [1988]; Preston Corp. v. Fabrication Enters,
68 NY2d 397 [1986]; W.T. Grant Co. v. Srogi, 52 NY2d 496 [1981].)
39. Thus, as a first step, Plaintiffs must show the likelihood of success. Combining the
EUO scheduling and notification letters, no-show statements with the evidence of timely denials,
the likely chance of success is overwhelming. See Exhibits “H - J”. The Affidavit of the Claims
Department Team Manager regarding the bill handling process and timely denials is attached hereto
as Exhibit “N”. Next, it must be shown that irreparable injury will result if the preliminary
injunction is not granted. Failure to grant the injunction could result in rewards and decisions that
are inconsistent with the ultimate findings in this case and may force Plaintiffs to litigate and
arbitrate the same claims simultaneously resulting in unnecessary expense to Plaintiffs as well as the
court. Summons and Complaints by some of the Medical Provider Defendants have already been
filed against Plaintiffs. Without the requested preliminary injunction, Plaintiffs would expend
considerable amounts on motions, trials and appeals and claims handling functions consuming
litigation. This would be an irreparable harm to the Plaintiffs.
10 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
40. As to the defense on its denials, supporting that there would be irreparable harm if
these cases are not addressed collectively, the law on EUO no-show and caused accidents is clear.
As indicated by one court,
“In support of its cross motion for summary judgment dismissing the
complaint, defendant submitted affidavits of its No-Fault examiner and
its mailroom supervisor. The affidavits sufficiently established that the
EUO notices had been sent to plaintiff's assignor in accordance with
defendant's standard office practices and procedures (See St. Vincent's
Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123,
1124 [2008]; Richard Morgan Do, P .C. v. State Farm Mut. Auto. Ins.
Co., 22 Misc.3d 134[A], 2009 N.Y. Slip Op 50242[U] [App Term, 9th &
10th Jud Dists 2009]; Chi Acupuncture, P.C. v. Kemper Auto & Home
Ins. Co., 14 Misc.3d 141[A], 2007 N.Y. Slip Op 50352[U] [App Term,
9th & 10th Jud Dists 2007]). Defendant also submitted an affidavit of
the investigator who was to perform the EUOs, which established that
the assignor had failed to appear therefor (See Stephen Fogel
Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In
addition, defendant sufficiently established that the denial of claim forms
had been timely mailed in accordance with defendant's standard office
practices and procedures (See St. Vincent's Hosp. of Richmond, 50
AD3d at 1124).The papers substantiate the basis for the EUO request.
Moreover, plaintiff does not claim to have responded in any way to
defendant's request for a EUO. Therefore, plaintiff will not be heard to
complain that there was no reasonable basis for the EUO request (cf.
Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co.,
262 A.D.2d 553 [1999]; Urban Radiology, P.C. v. Tri–State Consumer
Ins. Co., 27 Misc.3d 140[A], 2010 N.Y. Slip Op 50987[U] [App Term,
2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v. New York
Cent. Mut. Fire Ins. Co., 21 Misc.3d 130[A], 2008 N.Y. Slip Op 52046
[U] [App Term, 9th & 10th Jud Dists 2008]).”
Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc.3d 134(A),
927 N.Y.S.2d 815 (Table), 2011 WL 1448133 (N.Y.Sup.App.Term), 2011.
41. To be clear, the courts have consistently recognized, and ruled accordingly, that an
insurance company need only show that Examinations Under Oath were properly and conveniently
scheduled with due notification and that the Defendants failed to appear in order to issue proper
denials on these grounds. Five Boro Psychological Services, P.C. v Progressive Northeastern Ins.
Co., 27 Misc 3d 141(A) [App Term 2010] ; All-Boro Med. Supplies, Inc. v Progressive Northeastern
Ins. Co., 20 Misc 3d 554, 556 [Civ Ct 2008].
11 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
“The willful failure of an insured to submit to an examination under oath … in
compliance with the provisions of an insurance policy has been held to constitute a
material breach of contract, and to preclude recovery.” Levy v. Chubb Ins., 240 AD2d
336 [1997].
42. Further, “A denial premised on breach of a condition precedent to coverage voids
the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense
premised on no coverage” Unitrin v Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82
AD3d 559 [2d Dept 2011], citing Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195
[1997]. Therefore any argument that any of the denials were not submitted in a timely manner is
irrelevant, as Defendants’ failure to submit to conveniently scheduled Examinations Under Oath
voided their policy and, as a result, Plaintiffs has the right to deny coverage for their failure to
comply with a condition precedent to coverage under the insurance contract.
43. Finally, the balancing of the equities is the last step to a preliminary injunction and
Plaintiffs meet that burden, as well. As held by the Court in St. Paul: “In addition, in view of the
multiplicity of lawsuits and the possible inconsistent outcomes in the absence of an injunction,
plaintiff has established the elements of irreparable injury and the balancing of the equities in its
favor.” St. Paul Travelers Ins. Co. v. Nandi, 15 Misc.3d 1145(A), 7 [2007] citing Doe v. Axelrod, 73
NY2d 748 [1988]; Preston Corp. v. Fabrication Enters., 68 NY2d 397 [1986]; W.T. Grant Co. v.
Srogi, 52 NY2d 496 [1981]. Thus, all the requirements have been met for an injunction and
ultimately a default judgment.
44. Plaintiffs are entitled to defend any claim, regardless of initial denial, whenever there
is a “lack of coverage defense premised on the fact or founded belief that the alleged injury does not
arise out of an insured incident”. Cen Gen Hosp. v. Chubb Ins., 90 N.Y.2d 195 (1997); Zappone v.
Home Ins., 55 N.Y.2d 131 (1982); Albert Schiff Assoc. v. Flack, 51 N.Y.2d 692 (1980); Metro Med.
v. Eagle 293, A.D.2d 751 (2d Dep’t 2002). Coverage cannot be invented after the fact. It must exist
12 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
initially or it does not exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185
[2000]; CGU Ins. v. Guadagno, 280 AD2d 509 [2d Dept 2001].
45. An assignee does not stand in a better position than his assignor. “He is subject to all
the equities and burdens which attach to the property assigned because he receives no more and can
do no more than his assignor.” See Int’lRibbon Mills, Ltd. v. Arjan Ribbons, Inc., 36 N.Y2d 121,
126, 325 N.E.2d 137, 139, 365 N.Y.2d 808,811 (1975); See alsoAbraham v. Hanover Ins. Co., 66
A.D.2d 808, 411 N.Y.S. 2d 355 (2d Dep’t 1978).
46. The Medical Provider Defendants, as assignees of the Individual Defendant,
Desmond Julien, are not entitled to compensation from Plaintiffs due to the failure of the Individual
Defendant to attend EUOs and comply with a condition precedent to coverage under the insurance
agreement. See Allstate Ins. Co. v. Pierre, supra.
47. The Non-Answering Defendants have failed to timely answer the allegations
contained in the properly served pleadings. Plaintiffs are entitled under CPLR 3215 to a default
judgment against the non-answering Defendants on the merits in all respects.
Default Judgment Should Be Granted Despite Delay in Bringing Motion
48. Plaintiffs concede that the instant motion is late-filed. Our delay in filing the instant
motion has a reasonable excuse as it was due to ongoing motions to change venue.
49. Specifically, on July 30, 2018, Steve Gitelis, Esq. on behalf of Defendants MLJ
Chiropractic PC and Robert Malakov Physician PC filed a Demand for Change of Venue. On
August 5, 2018, the office of the undersigned responded to same. See Exhibit “O”.
50. Then, on August 9, 2018, Steve Gitelis, Esq. on behalf of Defendants MLJ
Chiropractic PC and Robert Malakov Physician PC filed a Notice of Motion and Affirmation in
Support of Motion to Change Venue. The return date on this motion was August 31, 2018. Plaintiffs
13 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
responded to this Motion on August 24, 2018. On January 24, 2019, the Defendants’ Motion was
Denied. See Exhibit “P”.
51. Then, on March 20, 2019, Steve Gitelis, Esq. filed a Notice of Motion and
Affirmation in Support of Motion to Reargue. Plaintiffs opposed this Motion on April 4, 2019. On
August 22, 2019, Plaintiffs filed a Stipulation of Discontinuance with regard to Defendants MLJ
Chiropractic PC and Robert Malakov Physician PC. Thus, on January 6, 2020, the Court ordered
that the Motion to Reargue was moot, and set the status conference for January 17, 2020. See
Exhibit “Q”.
52. As the record sets forth, due to the extensive motion practice in this matter, the
Motion for Default Judgment and Affirmation in support thereof was delayed, and as such,
Plaintiffs respectfully request that this Court accept Plaintiffs’ reasonable excuse therefor.
WHEREFORE, it is respectfully requested that the Court grant the within motion and
issue a Default Judgment against Moshe Zirkiev for his failure to appear at two properly-noticed
case conferences in this matter and pursuant to this Court’s Order dated January 17, 2020; and issue
a Default Judgment with dismissal of allclaims by the non-answering Defendants herein named
declaring that the Plaintiffs’ denials of all claims for No-Fault benefits stemming from the alleged
occurrence be deemed valid and declaring and permanently staying each and every part of any
arbitration or court hearing with regard to the non-answering Defendants for No-Fault benefits
stemming from the alleged occurrence and for such other and proper relief as to this court deems
just.
Dated: White Plains, New York
November 16, 2020
14 of 15
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020
Yours etc.,
________________________________
Erin Grover, Esq.
BURKE, CONWAY & STIEFELD
Attorneys for Plaintiffs
LIBERTY MUTUAL INSURANCE
COMPANY, ET AL
10 Bank Street - Suite 1200
White Plains, NY 10606
(914) 997-8100
15 of 15
Preview
FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x AFFIRMATION IN SUPPORT LIBERTY MUTUAL INSURANCE COMPANY OF MOTION FOR DEFAULT and LM GENERAL INSURANCE COMPANY, JUDGMENT Plaintiffs Index No.: 652678/2018 -against – MOSHE ZIRKIEV “Individual Defendant," -and- ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC, ANESTHESIA SOLUTIONS P.C., BARRY DUBLIN MD, MLJ CHIROPRACTIC P.C., ORTHOCARETECH INC., PROTECHMED INC, QUALITY ORTHOPEDICS AND COMPLETE JOINT CARE P.C., QUEST DIAGNOSTICS INCORPORATED, RIGHT HAND MEDICAL ASSIST L.L.C., ROBERT MALAKOV, PHYSICIAN, P.C., ROXBURY ANESTHESIA, LLC, SOUTHWEST NASSAU RADIOLOGY, P.C., STILLWELL CHIROPRACTIC P.C., SURGICORE OF NEW JERSEY CITY, LLC., VALUECARE PHARMACY INC., VIRGINIA FERRIGNO, LMT, "Medical Provider Defendants" collectively, the Defendants. --------------------------------------------------------------------x Erin Grover, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following under penalties of perjury and pursuant to CPLR 2106: 1. I am associated with Burke, Conway & Stiefeld, attorneys for the Plaintiffs and as such, am fully familiar with all the facts and circumstance set forth herein based upon a review of the file maintained by this office. 2. Plaintiffs, hereinafter collectively referred to as “Liberty Mutual,” are insurance 1 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 entities that have issued insurance policies in the State of New York. 3. This motion is respectfully submitted in support of the within application for Default Judgment against Moshe Zirkiev for failure to appear in court, and against the non- answering Defendants for failure to respond to the instant lawsuit, granting Plaintiffs the declaration they seek that the Plaintiffs’ denials of the claims of the Individual Defendants are valid. 4. No prior motion for the relief requested herein has been made to this or any court. 5. So far as is relevant to the instant application, the underlying action is for a declaration to nullify any and allNo-Fault benefits allegedly due to any of the Medical Provider Defendants on assignment from the Individual Defendant, Moshe Zirkiev (hereinafter, “Zirkiev”). 6. This action arises out of claims for No-Fault reimbursement stemming from a motor vehicle accident involving Zirkiev on May 23, 2017 (hereinafter referred to as “the occurrence”). 7. The policy in question was issued to Louba Zirkiev and Khibor Zirkiev under policy number AOS22815352640 effective April 8, 2017 through April 8, 2018 with limits of no-fault medical bill coverage of $50,000 per person. 8. According to the police report, the accident occurred the accident occurred on May 23, 2017, at Queens Boulevard and 68th St., Queens, NY. Moshe Zirkiev’s 2004 Lexus sedan was parked on Queens Boulevard at 68th Street when a truck owned and registered to Call A Head Corp. was traveling westbound on Queens Blvd. and allegedly side-swiped Zirkiev’s vehicle and fled the scene. 9. Following the occurrence, Zirkiev began seeking medical treatment for his alleged injuries. 10. The Medical Provider Defendants then submitted bills on assignment from Zirkiev to the Plaintiffs seeking No-Fault and bodily injury reimbursement. 11. The following Medical Provider Defendants submitted bills for Zirkiev: 2 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 All Billing for Zirkiev: ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC $1,244.73 ANESTHESIA SOLUTIONS P.C. $148.69 BARRY DUBLIN MD $503.01 MLJ CHIROPRACTIC P.C. $939.18 ORTHOCARETECH INC. $2,567.50 PROTECHMED INC $632.32 QUALITY ORTHOPEDICS AND COMPLETE JOINT CARE P.C. $12,354.77 QUEST DIAGNOSTICS INCORPORATED $177.94 RIGHT HAND MEDICAL ASSIST L.L.C. $2,423.73 ROBERT MALAKOV, PHYSICIAN, P.C. $5,739.56 ROXBURY ANESTHESIA, LLC $2,100.00 SOUTHWEST NASSAU RADIOLOGY, P.C. $3,549.07 STILLWELL CHIROPRACTIC P.C. $54.73 SURGICORE OF NEW JERSEY CITY, LLC. $8,265.42 VALUECARE PHARMACY INC. $548.78 VIRGINIA FERRIGNO, LMT $80.68 Total Billing $41,330.11 12. The total medical billing under the claim to date is $41,330.11. 13. In the instant case, default judgment is appropriate because (a) the Non-Answering Defendants failed to answer and appear in this action; (b) Individual Defendant Zirkiev failed to appear for his scheduled EUOs; (c) Individual Defendant Zirkiev failed to appear for court; and (d) it is a matter of law that the Medical Provider Defendants stand in the shoes of the Individual Defendant and as assignees acquire no greater rights than Individual Defendant Zirkiev. 14. Plaintiffs filed a Summons and Complaint against the Medical Provider Defendants and Individual Defendant Zirkiev seeking a declaratory judgment pursuant to CPLR § 3017(b) defining and declaring the rights, duties, obligations and legal relationships by and between the Plaintiffs and the named Defendants, which included the Medical Provider Defendants. A copy of the Summons and Complaint are annexed hereto as Exhibit “A”. 3 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 15. Plaintiffs served the Defendants with the Summons and Complaint. Copies of the affidavits of service for service of the Summons and Complaint upon the Defendants are annexed hereto as Exhibit “B”. 16. Pursuant to CPLR § 3215 (g)(4)(i) additional service of the Summons and Complaint was made by first class mail to the last known addresses as listed in the Summons of all Defendants at or subsequent to the time of service through the Secretary of State. A copy of the affidavit of service for the additional mailings of the Summons and Complaint are annexed hereto as Exhibit “C”. 17. It should be noted that, as of 30 days from the filing of this motion, Individual Defendant Moshe Zirkiev was not enrolled in active military service as determined by a search of the Department of Defense military database. Attached hereto as Exhibit “D” isthe affidavit of the SIU attorney who conducted the search of the Individual Defendant’s military service. 18. The following Defendants (hereinafter “the Non-Answering Defendants”) have failed to answer the Summons and Complaint: ADVANCED RECOVERY EQUIPMENT AND SUPPLIES LLC ANESTHESIA SOLUTIONS P.C., BARRY DUBLIN MD ROXBURY ANESTHESIA, LLC SOUTHWEST NASSAU RADIOLOGY, P.C. SOUTHWEST NASSAU RADIOLOGY, P.C., SURGICORE OF NEW JERSEY CITY, LLC. VALUECARE PHARMACY INC. 19. Plaintiffs request the Court to issue a Default Judgment against the Non-Answering Defendants for failure to timely Answer the Complaint. 20. Individual Defendant Moishe Zirkeiv filed an answer on July 23, 2018. A copy of his answer is annexed hereto as Exhibit “E”. 21. Medical Provider Defendants Robert Malakov Physician, PC, MLJ Chiropractic, PC, Protechmed Inc., filed their answers. Copies of the same are also annexed hereto as Exhibit “E”. 4 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 22. Plaintiffs filed Stipulations of Discontinuance as to MLJ Chiropractic, PC, Orthocaretech Inc., Quest Diagnostics Incorporated, and Robert Malakov, Physician, PC. See Exhibit “F” annexed hereto. 23. The No-Fault reimbursement laws of the State of New York call for the swift payment of medical billsby the insurer of the vehicle involved in the motor vehicle accident but permit the insurer to disallow payments for those not medically necessary, those medical billsfor treatment unrelated to the accident, or those for which there is no coverage. Further, it allows providers to conduct reasonable investigation and require Examinations under Oath of the parties to determine the legitimacy of the claims. 24. An investigation into the claim was begun due to the loss facts and concerns of Moshe Zirkiev’s treatment. Khibor Zirkiev, Zirkiev’s father and policy holder, stated to Liberty that Moshe Zirkiev was only in the driver’s seat at the time of the alleged accident because his father got out of the car to go into E&K Auto Repair and told his son to sitin the driver’s seat should the vehicle have to be moved from where it was parked on Queens Boulevard. Prior to Zirkiev’s father returning to the car, the vehicle was side swiped by a truck who fled the scene while the Individual Defendant was in the driver’s seat. Louba Zirkiev, a policyholder and mother of Moshe Zirkiev, gave a different version of the events leading up to the accident. She claims that she had driven to the shop and they were waiting for someone to come out. They were waiting in a no parking area so she told Moshe Zirkiev to seat in the driver’s seat as she exited the car. As part of the investigation, Moshe Zirkiev was asked to appear for an Examination under Oath (EUO). An Affidavit of the Claims Specialist who requested the EUOs to verify the treatment and facts of the loss is annexed hereto as Exhibit “G”. 25. EUOs were properly scheduled for Moshe Zirkiev on September 20, 2017 and November 9, 2017. Letters scheduling the EUOs were sent to Zirkiev and his attorney on August 7, 5 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 2017, September 28, 2017, and October 24, 2017. Moshe Zirkiev did not appear for any of the scheduled EUOs despite proper notification letters to Zirkiev and his attorney. Zirkiev failed to cooperate with Plaintiffs by failing to appear for two scheduled EUOs despite proper notifications. The EUO notification letters dated August 7, 2017, September 28, 2017, and October 24, 2017 are attached hereto as Exhibit “H”. 26. Based on the misrepresentation of the facts and circumstances of the accident and the failure to appear for his Examinations Under Oath, Plaintiffs timely denied all bills submitted by the Medical Provider Defendants. The EUO no-show transcript and affirmation of the appearing attorney evidencing Moshe Zirkiev’s failure to appear for his properly scheduled EUOs are annexed collectively hereto as Exhibit “I”. 27. Moreover, Individual Defendant Moshe Zirkiev, refused, by his actions or lack thereof, to produce any of the documents requested that were listed on the EUO notification letters for his two scheduled EUOs. The plaintiffs’ request for documentation pre-EUO would have provided information that is germane as to the events of the claimed occurrence. See Exhibit “H”. 28. An Examination Under Oath tool is a verification demand that the insurer has in order to weed out fraudulent claims of all concerns, be it the staged accident, medical clinics that are fraudulent or claimants that have procured their policies fraudulently. The EUO requirement is a condition precedent to coverage. As to conditions precedent generally, one court noted, “In other scenarios under the No-Fault Law, the courts have dismissed claims brought by service providers based upon a breach of a condition precedent by the assignee. Thus, a claim will be dismissed based upon an insurer's assertion of lack of coverage defense that is premised upon an investigator's unrefuted assertion of a “fact or founded belief” that the alleged injury did not arise out of an insured incident. See Central General Hosp. v. Chubb, 90 N.Y.2d 195 (1997); A.B. Med. Servs. PLLC v. State Farm Mutual Auto Ins., 2004 NY. Slip Op. 50638(U), 4 Misc.3d 129(A) (App. Term, 2 & 11th Jud. Depts. 2004); A.B. Med. Servs. PLLC v. State Farm Mutual Auto Ins., 7 Misc.3d 822 (Civil Ct., Kings CO. 2005). In the latter case, the court determined, after trial, that the assignors had been involved in staged collisions thus negating any policy 6 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 of coverage by State Farm. While there was no evidence that the plaintiff assignor participated in the fraud or that the fraud should be imputed to the assignor, “plaintiffs would be the primary beneficiaries of (the) fraud” were they allowed to recover. A.B. Med, supra, 7 Misc.3d at 832. Moreover, “an assignee stands in the shoes of the assignor.” Id., citing Arena Constru. Co. v. J. Sackaris & Sons, 282 A.D.2d 489 (2d Dept.2001). Quality Psychological Services, P.C. v. New York Cent. Mut. Fire Ins. Co., 29 Misc.3d 1228(A), (N.Y. City Civ. Ct., 2010). 29. The theme whereby the claimant fails to complete the condition precedent is never more in play when he fails to appear for the requested Independent Medical Examination (“IME”) or as in this instance, the requested Examination under Oath (“EUO”). In Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1stDept, 2011), the Appellate Division, First Department held “The failure to appear for IMEs requested by the insurer “when, and as often as, [it] may reasonably require” (Insurance Department Regulations [11 NYCRR] § 65–1.1) is a breach of a condition precedent to coverage under the No–Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997]. Accordingly, when defendants' assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (See Insurance Department Regulations [11 NYCRR] § 65–3.8 [c]; Fogel, 35 A.D.3d at 721–22, 827 N.Y.S.2d 217).” Unitrin Advantage, at 1. 30. There is no doubt that the requirement for an appearance at the EUO also would have a similar result as in Unitrin. In Crotona Heights Medical, P.C. v. Farm Family Cas. Ins. Co., 27 Misc.3d 134(A), 910 N.Y.S.2d 404 N.Y. Sup. App. Term, 2010, 2nd, 11th and 13th Judicial Districts, the court held, “The appearance of the eligible injured person's assignee at an EUO upon a proper request is a condition precedent to the insurer's liability on the policy (See Insurance Department Regulations [11 NYCRR] § 65– 1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc.3d 142[A], 2009 N.Y. Slip Op 51732[U]).” Crotona Heights Medical, P.C., at 1. 7 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 31. In Allstate Ins. Co. v. Pierre, 123 A.D.3d 618 (1st Dept. 2014) the Court held that insureds breached condition precedent to coverage by failing to appear, as required by policies, at their first and second scheduled examinations under oath. 32. Plaintiffs demonstrated their entitlement to a Default Judgment against the Defendants by submitting proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the Defendants’ default in answering or appearing (see CPLR 3215[f]; Mercury Cas. Co. v. Surgical Center at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218 (2nd Dept., 2009). See also, C & H Import & Export, Inc. v. MNA Global, Inc., 79 A.D.3d 784, 912 N.Y.S.2d 428 (2nd Dept., 2010). Proof of Service is set forth through the Affidavits of Service attached to this motion. Those Medical Provider Defendants who were served with the Summons and Complaint by service through the Secretary of State were also served with the Summons and Complaint by regular mail to their last known address at the time that they were being served through the Secretary of State. See Exhibits “B-C.” Plaintiffs’ timely denials are annexed hereto as Exhibit “J”. 33. On January 6, 2020, following the filing of a Stipulation of Discontinuance with regard to MLJ Chiropractic PC and Robert Malakov, Physician, PC in this matter, this Court set a status conference for January 17, 2020 at 11:00 a.m. See Exhibit “K”, Order dated January 6, 2020. Moshe Zirkiev was notified of this conference via E-mail Service from efile@nycourts.gov. Moshe Zirkiev failed to appear in court on January 17, 2020 for the case conference. See Exhibit “L,” Order of Court dated January 17, 2020 with Notice of Entry and Affidavit of Service. In this Order, the Court set a status conference for February 27, 2020 at 9:30 a.m. and further ordered that with regard to any named parties that fail to appear at said conference, a default judgment may be granted against them and/or their claims may be dismissed pursuant to 22 NYCRR 202.27. Moshe Zirkiev was notified of this conference via E-mail Service from efile@nycourts.gov. Moshe Zirkiev failed to 8 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 appear in court on February 27, 2020. See Exhibit “M”, Order dated February 27, 2020. Therefore, a default against Moshe Zirkiev is proper for his failure to appear at two properly-noticed case conferences in this matter and pursuant to this Court’s Order dated January 17, 2020. Should Default Judgment and a Permanent Stay Be Denied, the Plaintiffs Should Be Granted an Order issuing a Preliminary Injunction Staying All Cases in Any Court of the State of New York with Regard to the Defaulting Defendants 34. Plaintiffs are entitled to defend any claim, regardless of initial denial, whenever there is a “lack of coverage defense”. Cen Gen Hosp. v. Chubb Ins., 90 N.Y.2d 195 (1997); Zappone v. Home Ins., 55 N.Y.2d 131 (1982); Albert Schiff Assoc. v. Flack, 51 N.Y.2d 692 (1980); Metro Med. v. Eagle 293, A.D.2d 751 (2d Dep’t 2002). Coverage cannot be invented after the fact. It must exist initially or it does not exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185 [2000]; CGU Ins. v. Guadagno, 280 AD2d 509 [2d Dept 2001]. 35. CPLR §3001 provides: “The Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. If the Court declines to render such a judgment it shall state its grounds.” 36. In addition, CPLR §602(a) provides for consolidation of actions in appropriate circumstances as follows: “When actions involving a common question of law or fact are pending before a court, the Court, upon motion, may order a joint trialof any or all matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” 37. Generally, Plaintiffs concede that No-Fault benefit claims should not be consolidated unless the facts and circumstances arise from a common accident. Metro Medical Diagnostics, P.C. v. Motor Vehicle Accident Indemnity Corp., 6 Misc.3d 136[A], 2005 N.Y. Slip Op 50238[U] [2005]; Poole v. Allstate Ins. Co., 20 AD3d 518, 519 [2d Dept. 2006]; Kipor Medicine, 9 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 P.C. v. GEICO., 28 Misc.3d 129(A) [App Term, 2d, 11th, & 13th Jud Dists 2010]. However, the claims of the Defendants are of the type that requires consolidation. Therefore, in the first instance, any and all No-Fault claims separately filed in either court or arbitration as assignee of the Individual and Insured Defendants should be consolidated together and all of them resolved herein based on a determination as to whether the Plaintiffs’ denials are valid. Therefore, the Plaintiffs’ request for a Preliminary Injunction in effect staying all cases and arbitrations must be granted. Plaintiffs’ timely denials are annexed hereto as Exhibit “J”. 38. A preliminary injunction may issue only if the moving party can demonstrate (1) the likelihood of success on the merits; (2) irreparable injury if the preliminary injunction is not granted, and (3) a balancing of the equities in its favor. (See St. Paul Travelers Ins. Co. v. Nandi, 15 Misc.3d 1145(A), 7 [2007] citing Doe v. Axelrod, 73 NY2d 748 [1988]; Preston Corp. v. Fabrication Enters, 68 NY2d 397 [1986]; W.T. Grant Co. v. Srogi, 52 NY2d 496 [1981].) 39. Thus, as a first step, Plaintiffs must show the likelihood of success. Combining the EUO scheduling and notification letters, no-show statements with the evidence of timely denials, the likely chance of success is overwhelming. See Exhibits “H - J”. The Affidavit of the Claims Department Team Manager regarding the bill handling process and timely denials is attached hereto as Exhibit “N”. Next, it must be shown that irreparable injury will result if the preliminary injunction is not granted. Failure to grant the injunction could result in rewards and decisions that are inconsistent with the ultimate findings in this case and may force Plaintiffs to litigate and arbitrate the same claims simultaneously resulting in unnecessary expense to Plaintiffs as well as the court. Summons and Complaints by some of the Medical Provider Defendants have already been filed against Plaintiffs. Without the requested preliminary injunction, Plaintiffs would expend considerable amounts on motions, trials and appeals and claims handling functions consuming litigation. This would be an irreparable harm to the Plaintiffs. 10 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 40. As to the defense on its denials, supporting that there would be irreparable harm if these cases are not addressed collectively, the law on EUO no-show and caused accidents is clear. As indicated by one court, “In support of its cross motion for summary judgment dismissing the complaint, defendant submitted affidavits of its No-Fault examiner and its mailroom supervisor. The affidavits sufficiently established that the EUO notices had been sent to plaintiff's assignor in accordance with defendant's standard office practices and procedures (See St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Richard Morgan Do, P .C. v. State Farm Mut. Auto. Ins. Co., 22 Misc.3d 134[A], 2009 N.Y. Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v. Kemper Auto & Home Ins. Co., 14 Misc.3d 141[A], 2007 N.Y. Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Defendant also submitted an affidavit of the investigator who was to perform the EUOs, which established that the assignor had failed to appear therefor (See Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant's standard office practices and procedures (See St. Vincent's Hosp. of Richmond, 50 AD3d at 1124).The papers substantiate the basis for the EUO request. Moreover, plaintiff does not claim to have responded in any way to defendant's request for a EUO. Therefore, plaintiff will not be heard to complain that there was no reasonable basis for the EUO request (cf. Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 A.D.2d 553 [1999]; Urban Radiology, P.C. v. Tri–State Consumer Ins. Co., 27 Misc.3d 140[A], 2010 N.Y. Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v. New York Cent. Mut. Fire Ins. Co., 21 Misc.3d 130[A], 2008 N.Y. Slip Op 52046 [U] [App Term, 9th & 10th Jud Dists 2008]).” Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc.3d 134(A), 927 N.Y.S.2d 815 (Table), 2011 WL 1448133 (N.Y.Sup.App.Term), 2011. 41. To be clear, the courts have consistently recognized, and ruled accordingly, that an insurance company need only show that Examinations Under Oath were properly and conveniently scheduled with due notification and that the Defendants failed to appear in order to issue proper denials on these grounds. Five Boro Psychological Services, P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141(A) [App Term 2010] ; All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554, 556 [Civ Ct 2008]. 11 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 “The willful failure of an insured to submit to an examination under oath … in compliance with the provisions of an insurance policy has been held to constitute a material breach of contract, and to preclude recovery.” Levy v. Chubb Ins., 240 AD2d 336 [1997]. 42. Further, “A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage” Unitrin v Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2d Dept 2011], citing Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]. Therefore any argument that any of the denials were not submitted in a timely manner is irrelevant, as Defendants’ failure to submit to conveniently scheduled Examinations Under Oath voided their policy and, as a result, Plaintiffs has the right to deny coverage for their failure to comply with a condition precedent to coverage under the insurance contract. 43. Finally, the balancing of the equities is the last step to a preliminary injunction and Plaintiffs meet that burden, as well. As held by the Court in St. Paul: “In addition, in view of the multiplicity of lawsuits and the possible inconsistent outcomes in the absence of an injunction, plaintiff has established the elements of irreparable injury and the balancing of the equities in its favor.” St. Paul Travelers Ins. Co. v. Nandi, 15 Misc.3d 1145(A), 7 [2007] citing Doe v. Axelrod, 73 NY2d 748 [1988]; Preston Corp. v. Fabrication Enters., 68 NY2d 397 [1986]; W.T. Grant Co. v. Srogi, 52 NY2d 496 [1981]. Thus, all the requirements have been met for an injunction and ultimately a default judgment. 44. Plaintiffs are entitled to defend any claim, regardless of initial denial, whenever there is a “lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident”. Cen Gen Hosp. v. Chubb Ins., 90 N.Y.2d 195 (1997); Zappone v. Home Ins., 55 N.Y.2d 131 (1982); Albert Schiff Assoc. v. Flack, 51 N.Y.2d 692 (1980); Metro Med. v. Eagle 293, A.D.2d 751 (2d Dep’t 2002). Coverage cannot be invented after the fact. It must exist 12 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 initially or it does not exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185 [2000]; CGU Ins. v. Guadagno, 280 AD2d 509 [2d Dept 2001]. 45. An assignee does not stand in a better position than his assignor. “He is subject to all the equities and burdens which attach to the property assigned because he receives no more and can do no more than his assignor.” See Int’lRibbon Mills, Ltd. v. Arjan Ribbons, Inc., 36 N.Y2d 121, 126, 325 N.E.2d 137, 139, 365 N.Y.2d 808,811 (1975); See alsoAbraham v. Hanover Ins. Co., 66 A.D.2d 808, 411 N.Y.S. 2d 355 (2d Dep’t 1978). 46. The Medical Provider Defendants, as assignees of the Individual Defendant, Desmond Julien, are not entitled to compensation from Plaintiffs due to the failure of the Individual Defendant to attend EUOs and comply with a condition precedent to coverage under the insurance agreement. See Allstate Ins. Co. v. Pierre, supra. 47. The Non-Answering Defendants have failed to timely answer the allegations contained in the properly served pleadings. Plaintiffs are entitled under CPLR 3215 to a default judgment against the non-answering Defendants on the merits in all respects. Default Judgment Should Be Granted Despite Delay in Bringing Motion 48. Plaintiffs concede that the instant motion is late-filed. Our delay in filing the instant motion has a reasonable excuse as it was due to ongoing motions to change venue. 49. Specifically, on July 30, 2018, Steve Gitelis, Esq. on behalf of Defendants MLJ Chiropractic PC and Robert Malakov Physician PC filed a Demand for Change of Venue. On August 5, 2018, the office of the undersigned responded to same. See Exhibit “O”. 50. Then, on August 9, 2018, Steve Gitelis, Esq. on behalf of Defendants MLJ Chiropractic PC and Robert Malakov Physician PC filed a Notice of Motion and Affirmation in Support of Motion to Change Venue. The return date on this motion was August 31, 2018. Plaintiffs 13 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 responded to this Motion on August 24, 2018. On January 24, 2019, the Defendants’ Motion was Denied. See Exhibit “P”. 51. Then, on March 20, 2019, Steve Gitelis, Esq. filed a Notice of Motion and Affirmation in Support of Motion to Reargue. Plaintiffs opposed this Motion on April 4, 2019. On August 22, 2019, Plaintiffs filed a Stipulation of Discontinuance with regard to Defendants MLJ Chiropractic PC and Robert Malakov Physician PC. Thus, on January 6, 2020, the Court ordered that the Motion to Reargue was moot, and set the status conference for January 17, 2020. See Exhibit “Q”. 52. As the record sets forth, due to the extensive motion practice in this matter, the Motion for Default Judgment and Affirmation in support thereof was delayed, and as such, Plaintiffs respectfully request that this Court accept Plaintiffs’ reasonable excuse therefor. WHEREFORE, it is respectfully requested that the Court grant the within motion and issue a Default Judgment against Moshe Zirkiev for his failure to appear at two properly-noticed case conferences in this matter and pursuant to this Court’s Order dated January 17, 2020; and issue a Default Judgment with dismissal of allclaims by the non-answering Defendants herein named declaring that the Plaintiffs’ denials of all claims for No-Fault benefits stemming from the alleged occurrence be deemed valid and declaring and permanently staying each and every part of any arbitration or court hearing with regard to the non-answering Defendants for No-Fault benefits stemming from the alleged occurrence and for such other and proper relief as to this court deems just. Dated: White Plains, New York November 16, 2020 14 of 15 FILED: NEW YORK COUNTY CLERK 11/17/2020 07:49 AM INDEX NO. 652678/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/17/2020 Yours etc., ________________________________ Erin Grover, Esq. BURKE, CONWAY & STIEFELD Attorneys for Plaintiffs LIBERTY MUTUAL INSURANCE COMPANY, ET AL 10 Bank Street - Suite 1200 White Plains, NY 10606 (914) 997-8100 15 of 15