Preview
FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
____________________________ ..--------------------X
LIBERTY MUTUAL INSURANCE COMPANY and
LM GENERAL INSURANCE COMPANY,
Plaintiff(s), Index No. 654092/2019
-against- ANSWER
KENDON THOMAS,
("Individual Defendant")
AND
AMRO CARE PT, P.C., LAWRENCE
CHIROPRACTIC DIAGNOSTIC SERVICE,
NORTH SHORE HOME CARE SERVICES, INC.,
AVA COSTUM SUPPLY, INC., OPUS
PSYCHOLOGICAL SERVICES, P.C.,
SI ACUPUNCTURE, P.C., METRO PAIN
SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC,
CITIMEDICAL 1, PLLC, MAURO
CHIROPRACTIC, P.C., HARBOR MEDICAL
GROUP, P.C., ACUTUS RX, LLC, AK
GLOBAL SUPPLY CORP.
("Medical Provider Defendants")
Defendants.
_______________....________ -----------------X
PLEASE TAKE NOTICE that Defendant, Harbor Medical Group P.C.
("Harbor"), hereby appears in this action.
PLEASE TAKE FURTHER NOTICE that Harbor, by itsattorneys, ABRAMS,
FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF &
CARONE, LLP, hereby interposes the following Answer to the Complaint herein:
1. Harbor lack knowledge or information sufficient to form a belief as to the
"1," "2," "3," "4,"
truth, veracity or lack thereof of the allegations set forth in paragraphs
"5," "6," "7," "8," "9," "10," "11," "12," "13," "14," "15," "16," "17," "18," "20," "21,"
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"22," "23," "24," "25," "26," "27," "28," "29," "30," "31," "32," "33," "34," "35," "36,"
"37," "38"
and of the Complaint.
"19"
2. Harbor admits the allegations set forth in paragraph of the Complaint
to the extent that Harbor is a domestic corporation which has or is transacting business in
the State of New York.
"39"
3. Harbor admits the allegations set forth in paragraph of the Complaint.
"40," "45," "49," "52," "56"
4. As to paragraphs and of the Complaint, Harbor
repeats, reiterates, and incorporates itsresponses set forth in the preceding and subsequent
paragraphs within Plaintiff's Complaint.
"41," "42," "43," "44,"
5. Harbor denies the allegations set forth in paragraphs
"46," "47," "48," "50," "51," "53," "54," "55," "57," "58," "59"
and of the Complaint.
AS AND FOR HARBOR'S FIRST AFFIRMATIVE DEFENSE
6. Plaintiff's Complaint fails to state a claim for which relief may be granted.
Indeed, Plaintiff failed to substantiate its allegations by way of admissible evidence.
AS AND FOR HARBOR'S SECOND AFFIRMATIVE DEFENSE
7. Plaintiff's current action is barred pursuant to the doctrines of res judicate,
collateral estoppel, and prior action pending.
AS AND FOR HARBOR'S THIRD AFFIRMATIVE DEFENSE
8. This Court lacks jurisdiction over the instant matter as issues No-
regarding
Fault reimbursement are issues to be determined by lower trialcourts.
AS AND FOR HARBOR'S FOURTH AFFIRMATIVE DEFENSE
9. The Complaint contains one or more causes of action which are barred by
the doctrine of estoppel.
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AS AND FOR HARBOR'S FIFTH AFFIRMATIVE DEFENSE
10. The Complaint contains one or more causes of action which are barred by
the doctrine of waiver.
AS AND FOR HARBOR'S SIXTH AFFIRMATIVE DEFENSE
11. This Court lacks personal jurisdiction over the Defendants.
AS AND FOR HARBOR'S SEVENTH AFFIRMATIVE DEFENSE
12. The Complaint contains one or more causes of action that are barred by the
applicable statute of limitations.
AS AND FOR HARBOR'S EIGHTH AFFIRMATIVE DEFENSE
13. Granting the Plaintiffs demand in the Complaint would result in Unjust
Enrichment.
WHEREFORE, Harbor hereby demands judgment dismissing Plaintiff's
declaratory judgment action in its entirety, and further demand statutory attorney's fees
pursuant to 11 N.Y.C.R.R. 65-4.6(e), together with costs, disbursements and expenses of
this action, and for any and all further relief which the Court deems just and proper.
Dated: Lake Success, New York
August 7, 2019
Yours, etc.
Anthony J. DiChiara, Esq.
ABRAMS, FENSTERMAN,
FENSTERMAN, EISMAN, FORMATO,
FERRARA, WOLF & CARONE, LLP
3 Dakota Drive, Suite 300
Lake Success, NY 11042
Attorneys for Defendant
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FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019
TO:
Burke, Conway & Steifeld
10 Bank Street, Suite 1200
White Plains, New York 10606
Attorneys for Plaintiff
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FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019
AFFIRMATION OF SERVICE
STATE OF NEW YORK)
)ss.:
COUNTY OF NASSAU)
Anthony DiChiara, Esq., an attorney duly admitted to practice law before the Courts
of the State of New York, under the penalty of perjury, affirms the following:
On August 7, 2019, I served the following:
DEFENDANTS'
ANSWER
The uñdersigned mailed the same on the date listed below to the address listed below. In
addition, the undersigned uploaded the same on the date listed below to the New York State
Court Electronic Filing portal:
Addressee(s): Burke, Conway & Steifeld
10 Bank Street, Suite 1200
White Plains, New York 10606
Attorneys for Plaintiff
7th
Date of Mailing: DAY OF AUGUST 2019
Anthony DiChiara, Esq.
Date: August 7, 2019
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FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019
Index No: 654092 Year: 2019
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
LIBERTY MUTUAL INSURANCE COMPANY and
LM GENERAL INSURANCE COMPANY,
Plaintiff,
-against-
KENDON THOMAS,
("Individual Defendant")
AND
AMRO CARE PT, P.C., LAWRENCE
CHIROPRACTIC DIAGNOSTIC SERVICE,
NORTH SHORE HOME CARE SERVICES, INC.,
AVA COSTUM SUPPLY, INC., OPUS
PSYCHOLOGICAL SERVICES, P.C.,
SI ACUPUNCTURE, P.C., METRO PAIN
SPECIALISTS PROFESSIONAL CORPORATION,
PROSPECT CHIROPRACTIC PLLC,
CITIMEDICAL 1, PLLC, MAURO
CHIROPRACTIC, P.C., HARBOR MEDICAL
GROUP, P.C., ACUTUS RX, LLC, AK
GLOBAL SUPPLY CORP.
("Medical Provider Defendants")
Defe_ndants.
DEFENDANTS'
ANSWER
ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN
FORMATO, FERRARA, WOLF AND CARONE, LLP
Defendants'
Attorneys for
To: Signature
Attorney(s) for Plaintiff ANTHON DICHIARA, ESQ.
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Preview
FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________________________ ..--------------------X LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiff(s), Index No. 654092/2019 -against- ANSWER KENDON THOMAS, ("Individual Defendant") AND AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICE, NORTH SHORE HOME CARE SERVICES, INC., AVA COSTUM SUPPLY, INC., OPUS PSYCHOLOGICAL SERVICES, P.C., SI ACUPUNCTURE, P.C., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL 1, PLLC, MAURO CHIROPRACTIC, P.C., HARBOR MEDICAL GROUP, P.C., ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP. ("Medical Provider Defendants") Defendants. _______________....________ -----------------X PLEASE TAKE NOTICE that Defendant, Harbor Medical Group P.C. ("Harbor"), hereby appears in this action. PLEASE TAKE FURTHER NOTICE that Harbor, by itsattorneys, ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP, hereby interposes the following Answer to the Complaint herein: 1. Harbor lack knowledge or information sufficient to form a belief as to the "1," "2," "3," "4," truth, veracity or lack thereof of the allegations set forth in paragraphs "5," "6," "7," "8," "9," "10," "11," "12," "13," "14," "15," "16," "17," "18," "20," "21," 1 1 of 6 FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019 "22," "23," "24," "25," "26," "27," "28," "29," "30," "31," "32," "33," "34," "35," "36," "37," "38" and of the Complaint. "19" 2. Harbor admits the allegations set forth in paragraph of the Complaint to the extent that Harbor is a domestic corporation which has or is transacting business in the State of New York. "39" 3. Harbor admits the allegations set forth in paragraph of the Complaint. "40," "45," "49," "52," "56" 4. As to paragraphs and of the Complaint, Harbor repeats, reiterates, and incorporates itsresponses set forth in the preceding and subsequent paragraphs within Plaintiff's Complaint. "41," "42," "43," "44," 5. Harbor denies the allegations set forth in paragraphs "46," "47," "48," "50," "51," "53," "54," "55," "57," "58," "59" and of the Complaint. AS AND FOR HARBOR'S FIRST AFFIRMATIVE DEFENSE 6. Plaintiff's Complaint fails to state a claim for which relief may be granted. Indeed, Plaintiff failed to substantiate its allegations by way of admissible evidence. AS AND FOR HARBOR'S SECOND AFFIRMATIVE DEFENSE 7. Plaintiff's current action is barred pursuant to the doctrines of res judicate, collateral estoppel, and prior action pending. AS AND FOR HARBOR'S THIRD AFFIRMATIVE DEFENSE 8. This Court lacks jurisdiction over the instant matter as issues No- regarding Fault reimbursement are issues to be determined by lower trialcourts. AS AND FOR HARBOR'S FOURTH AFFIRMATIVE DEFENSE 9. The Complaint contains one or more causes of action which are barred by the doctrine of estoppel. 2 2 of 6 FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019 AS AND FOR HARBOR'S FIFTH AFFIRMATIVE DEFENSE 10. The Complaint contains one or more causes of action which are barred by the doctrine of waiver. AS AND FOR HARBOR'S SIXTH AFFIRMATIVE DEFENSE 11. This Court lacks personal jurisdiction over the Defendants. AS AND FOR HARBOR'S SEVENTH AFFIRMATIVE DEFENSE 12. The Complaint contains one or more causes of action that are barred by the applicable statute of limitations. AS AND FOR HARBOR'S EIGHTH AFFIRMATIVE DEFENSE 13. Granting the Plaintiffs demand in the Complaint would result in Unjust Enrichment. WHEREFORE, Harbor hereby demands judgment dismissing Plaintiff's declaratory judgment action in its entirety, and further demand statutory attorney's fees pursuant to 11 N.Y.C.R.R. 65-4.6(e), together with costs, disbursements and expenses of this action, and for any and all further relief which the Court deems just and proper. Dated: Lake Success, New York August 7, 2019 Yours, etc. Anthony J. DiChiara, Esq. ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP 3 Dakota Drive, Suite 300 Lake Success, NY 11042 Attorneys for Defendant 3 3 of 6 FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019 TO: Burke, Conway & Steifeld 10 Bank Street, Suite 1200 White Plains, New York 10606 Attorneys for Plaintiff 4 of 6 FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019 AFFIRMATION OF SERVICE STATE OF NEW YORK) )ss.: COUNTY OF NASSAU) Anthony DiChiara, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, under the penalty of perjury, affirms the following: On August 7, 2019, I served the following: DEFENDANTS' ANSWER The uñdersigned mailed the same on the date listed below to the address listed below. In addition, the undersigned uploaded the same on the date listed below to the New York State Court Electronic Filing portal: Addressee(s): Burke, Conway & Steifeld 10 Bank Street, Suite 1200 White Plains, New York 10606 Attorneys for Plaintiff 7th Date of Mailing: DAY OF AUGUST 2019 Anthony DiChiara, Esq. Date: August 7, 2019 5 5 of 6 FILED: NEW YORK COUNTY CLERK 08/07/2019 02:50 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/07/2019 Index No: 654092 Year: 2019 CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK LIBERTY MUTUAL INSURANCE COMPANY and LM GENERAL INSURANCE COMPANY, Plaintiff, -against- KENDON THOMAS, ("Individual Defendant") AND AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICE, NORTH SHORE HOME CARE SERVICES, INC., AVA COSTUM SUPPLY, INC., OPUS PSYCHOLOGICAL SERVICES, P.C., SI ACUPUNCTURE, P.C., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL 1, PLLC, MAURO CHIROPRACTIC, P.C., HARBOR MEDICAL GROUP, P.C., ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP. ("Medical Provider Defendants") Defe_ndants. DEFENDANTS' ANSWER ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN FORMATO, FERRARA, WOLF AND CARONE, LLP Defendants' Attorneys for To: Signature Attorney(s) for Plaintiff ANTHON DICHIARA, ESQ. 6 6 of 6