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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 AND SUMMARY
Plaintiffs JUDGMENT
-against - Index No.: 654092-2019
KENDON THOMAS,
Defendant"
"Individual
-and-
AMRO CARE PT, P.C.,
LAWRENCE CHIROPRACTIC DIAGNOSTIC
SERVICES, P.C.,
NORTH SHORE HOME CARE SERVICES, INC.,
AVA CUSTOM SUPPLY INC.,
OPUS PSYCHOLOGICAL SERVICES P.C.,
SI ACUPUNCTURE, PC.,
METRO PAIN SPECIALISTS PROFESSIONAL
CORPORATION,
PROSPECT CHIROPRACTIC PLLC,
CITIMEDICAL I,PLLC,
MAURO CHIROPRACTIC P.C.,
HARBOR MEDICAL GROUP PC,
ACUTUS RX, LLC,
AK GLOBAL SUPPLY CORP,
Defendants"
"Medical Provider
collectively, the Defendants.
_________________________
____________-------------------------------X
Asher Grossman, Esq., 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 allthe facts and circumstance set forth herein based upon a review of
the filemaintained by this office.
Mutual,"
2. Plaintiffs, hereinafter collectively referred to as "Liberty are insurance
entities that have issued insurance policies in the State of New York.
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3. This motion is respectfully submitted in support of the within application for
Default Judgment against the non-answering and Summary Judgment against the Answering and
Plaintiffs'
Late-Answering Defendants, granting Plaintiffs the declaration they seek that the denials
of the claims of the Individual Defendant are valid; and for Summary Judgment against the
Answering parties based on the merits of this matter. In the alternative, should Summary Judgment
be denied, Plaintiffs request an Order issuing a Preliminary Injunction staying allcases regarding
the claims of Kendon Thomas regarding a motor vehicle accident of July 5, 2018 in any court of the
State of New York or in any arbitration proceeding.
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 all No-Fault benefits allegedly due to any of the Medical Provider
Defendants on assignment from the Individual Defendant, Kendon Thomas (hereinafter,
"Thomas").
6. This action arises out of claims for No-Fault reimbursement stemming from a motor
vehicle accident involving Individual Defendant, Thomas, on July 5, 2018 (hereinafter "the
occurrence").
7. The Policy (hereinafter "the policy") in question was issued to Regina Miller under
policy # AOS 22823665040 effective September 27, 2017 through September 27, 2018 with limits of
no-fault medical billcoverage of $50,000 per person.
8. According to the police report, the accident occurred on Waltham Street at the
107*
intersection of Avenue in Queens, New York. The operator of V1 (2013 Nissan sedan) stated
107*
that he was traveling Westbound on Ave. At the intersection of Waltham St., he stopped for
the Stop sign then proceeded to overtake the intersection, when the insured in V2 (1999 Nissan
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sedan) hit his vehicle. The insured in V2 stated that while traveling Northbound on Waltham St. at
107d'
the intersection of Ave., V1 never stopped at the stop sign and hit him.
9. Following the occurrence, Thomas began seeking medical treatment for his alleged
injuries.
10. The Medical Provider Defendants then submitted bills on assignment from Thomas
to the Plaintiffs seeking No-Fault and bodily injury reimbursement.
11. The following Medical Provider Defendants submitted bills for Thomas:
All Billing for Kendon Thomas:
AMRO CARE PT, P.C. 205.46
LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C. 1310.78
NORTH SHORE HOME CARE SERVICES, INC. 1744.00
AVA CUSTOM SUPPLY INC. 3209.56
OPUS PSYCHOLOGICAL SERVICES P.C. 1309.12
SI ACUPUNCTURE, PC. 3033.29
METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION 539.05
PROSPECT CHIROPRACTIC PLLC 1211.51
CITIMEDICAL I,PLLC 2670.40
MAURO CHIROPRACTIC P.C. 2428.99
HARBOR MEDICAL GROUP PC 2579.90
ACUTUS RX, LLC 1355.00
AK GLOBAL SUPPLY CORP 1718.94
Total Billing $23,316.00
12. The total medical billing under the claim to date is $23,316.00.
13. In the instant case, default judgment is appropriate as to the Non-Answering
and Judgment against the Defendants because the Non-
Defendants; Summary Answering (a)
Answering Defendants failed to answer and appear in this action; (b) the Late-Answering
Defendants failed to answer and appear in this action in a timely manner; (c) Individual Defendant
Thomas failed to appear for his scheduled EUOs; 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 Thomas.
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PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT AGAINST THE
ANSWERING DEFENDANTS AND DEFAULT JUDGMENT AGAINST THE
NON-ANSWERING DEFENDANTS; AND A PERMANENT STAY STAYING
ALL CASES EITHER IN ANY COURT OF THE STATE OF NEW YORK
14. Plaintiffs filed a Summons and Complaint against the Medical Provider Defendants
and Individual Defendant 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".
15. Plaintiffs served the Defendants with the Summons and Complaint. Individual
Defendant Thomas was served on August 10, 2019, Medical Provider Defendants Si Acupuncture
and Harbor Medical Group P.C. were served on July 29, 2019, and the remainder of the Medical
Provider Defendants were served on August 7, 2019. 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 firstclass mail to the last known addresses as listed in the Summons of allDefendants 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 Thomas was not enrolled in active military service as determined by a search of the
"D"
Department of Defense military database. Attached hereto as Exhibit is the 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:
ACUTUS RX, LLC
AVA CUSTOM SUPPLY INC.
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KENDON THOMAS
AMRO CARE PT, P.C.
LAWRENCE CHIROPRACTIC DIAGNOSTIC
SERVICES, P.C.
NORTH SHORE HOME CARE SERVICES, INC.
OPUS PSYCHOLOGICAL SERVICES P.C.
PROSPECT CHIROPRACTIC PLLC
SI ACUPUNCTURE, PC.
19. The following Defendants (hereinafter, "the Late-Answering Defendants") failed to
timely answer the Summons and Complaint and as such should have Default Judgment entered
against them for failure to timely answer the Summons & Complaint:
AK GLOBAL SUPPLY CORP
CITIMEDICAL I,PLLC
METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION
20. The following Defendant (hereinafter the "Answering Defendant") answered the
Summons and Complaint but should have Summary Judgment entered against iton the merits of
this Action:
HARBOR MEDICAL GROUP, PC
A copy of allanswers are annexed hereto collectively as Exhibit "E".
21. Plaintiffs request the Court to issue a Default Judgment against the non-answering
and Late-answering Defendants for failure to timely Answer the Complaint. Plaintiffs request the
Plaintiffs'
Court to issue Summary Judgment against the Answering Defendants in favor on the
merits of this Action.
22. The No-Fault reimbursement laws of the State of New York call for the swift
payment of medical bills by 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 bills for
treatment unrelated to the accident, or those for which there is no coverage. Further, it allows
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providers to conduct reasonable investigation and require Examinations under Oath of the parties to
determine the legitimacy of the claims.
23. Upon receipt of the claim, an investigation into the claims was begun due to the high
amount of billing received following a minor accident. As part of the investigation, Individual
Defendant Thomas was asked to appear for an Examination under Oath (EUO). An Affidavit of
the attorney who appeared for the EUOs to verify the treatment and facts of the loss is annexed
hereto as Exhibit "F".
24. EUOs were scheduled for Thomas on September 17, 2018, October 4, 2018,
October 25, 2018, and November 2, 2018. Letters scheduling the EUOs were sent to the claimant
and to his attorney on September 7, 2018, September 18, 2018, October 16, 2018, and October 25,
2018. The EUO on October 25, 2018 was rescheduled; Thomas did not appear for any of the
remaining scheduled EUOs. The EUO notification letters for Thomas and his attorney are attached
hereto as Exhibit "G".
25. The attorney who appeared to conduct the EUO of Thomas made statements on the
record regarding his failure to appear for the properly notified and scheduled EUOs. An Affidavit
from the appearing attorney is annexed hereto as Exhibit "F".
26. Based on the failure to appear for the Examinations Under Oath, Plaintiffs timely
denied all bills submitted by the Medical Provider Defendants. The EUO no-show transcripts
Thomas'
evidencing failure to appear are annexed hereto as Exhibit "H".
27. An Examination Under Oath tool is a verification demand that the insurer has in
order to weed out fraudulent claims of allconcerns, be itthe 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
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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
belief"
investigator's unrefuted assertion of a "fact or founded that the
alleged injury did not arise out of an insured incident. Jee 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
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.
assignor."
Moreover, "an assignee stands in the shoes of the 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).
28. The theme whereby the claimant fails to complete the condition precedent is never
more in play when he failsto appear for the requested Independent Medical Examination ("IME")
or as in this instance, the requested Examination under Oath ("EUO"). In Unitrin Advantage Ins.
(1"
Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 Dept, 2011), the
Appellate Division, First Department held
"The failure to appear for IMEs requested by the insurer "when, and as
require"
often as, [it] may reasonably (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
defendants'
246, 681 N.E.2d 413 [1997]. Accordingly, when 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 ( SeeInsurance Department Regulations [11
217)."
NYCRR] § 65-3.8 [c];Fogel, 35 A.D.3d at 721-22, 827 N.Y.S.2d
Unitrin Advantage, at 1.
29. 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.,
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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 (See Insurance Department Regulations [11 65-
policy NYCRR] §
1.1; Stephen Fogel Psychological. P.C., 35 AD3d at 722; W& Z
51732[U])."
Acupuncture, P.C., 24 Misc.3d 142[A], 2009 N.Y. Slip Op
Crotona Heights Medical, P.C., at 1.
30. Recently 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.
31. Plaintiffs demonstrated its entitlement to a Default Judgment against the
Defendants by submitting proof of service of the summons and complaint, proof of the facts
Defendants'
constituting its claim, and proof of the default in answering or appearing (see CPLR
3215[fj; 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
(2nd
N.Y.S.2d 428 Dept., 2010). Proof of Service is set forth through the Affidavits of Service
attached to this motion.
32. 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
"B-C." Plaintiffs'
through the Secretary of State. See Exhibits timely denials are annexed hereto as
Exhibit "I".
33. The Non-Answering and Late-Answering Medical Provider Defendants have failed
to timely answer the allegations contained in the properly served pleadings. Accordingly, Plaintiffs
are entitled under CPLR 3215 to a default judgment on the merits in allrespects; therefore, Plaintiffs
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request the Court to issue a Default Judgment against the Non-Answering and Late-Answering
Defendants for failure to timely Answer the Complaint.
34. Plaintiffs have also demonstrated their entitlement to Summary Judgment against the
Answering Defendant based on the foregoing.
ShouldDefault Judgment, Summary 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
35. 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); Z_ap_pone 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
initiallyor itdoes 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].
36. 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 reliefis or could be claimed. If the Court declines to
grounds."
render such a judgment itshall state its
37. 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
delay."
may tend to avoid unnecessary costs or
38. Generally, Plaintiffs concede that No-Fault benefit claims should not be
consolidated unless the facts and circumstances arise from a common accident. Metro Medical
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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,
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 firstinstance,
any and allNo-Fault claims separately filed in either court or arbitration as assignee of the Individual
and Insured Defendants should be consolidated together and allof them resolved herein based on a
Plaintiffs' Plaintiffs'
determination as to whether the denials are valid. Therefore, the request for a
Plaintiffs'
Preliminary Injunction in effect staying allcases and arbitrations must be granted. timely
denials are annexed hereto as Exhibit "I".
39. 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 itsfavor. (See St. Paul Travelers Ins. Co. v. Nandi, 15 Misc.3d
1145(A), 7 [2007] citingDoe 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].)
40. 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 chance of success is overwhelming. See Exhibits "G - I". The Affidavit of the Claims
likely
Department Team Manager regarding the billhandling process and timely denials is attached hereto
as Exhibit "J".
41. Next, itmust 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
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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.
42. 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 itsNo-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
Hoso. of Richmond v. Government Emols. 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 fcL
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
2008])."
[U] [App Term, 9th & 10th Jud Dists
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.
43. 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
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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].
"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
recovery."
material breach of contract, and to preclude Levy v. Chubb Ins., 240 AD2d
336 [1997].
44. 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
coverage"
premised on no 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
Defendants'
irrelevant, as 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.
45. 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.
46. 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
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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
initiallyor itdoes not exist at all.See Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185
[2000]; CGU Ins. v. Guadagm, 280 AD2d 509 [2d Dept 2001].
47. An assignee does not stand in a better position than his assignor. "He is subject to
allthe equities and burdens which attach to the property assigned because he receives no more and
assignor."
can do no more than his See Int'1 Ribbon 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).
48. Policyholders and their assignors may be treated by the Plaintiffs as ineligible for
coverage under the A.B. Med. Services PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 11-
policy, 8,
12 (App Term 2006). Defendants, as assignees of all the rights, privileges, and remedies, stands in
the shoes of the Individual Defendant and as assignees acquired no greater rights than he had. Jee
New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 17 N.Y.3d 586, 592 (2011).
49. 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 reliefis or could be claimed. If the Court declines to
grounds."
render such a judgment itshall state its
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FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 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 AND SUMMARY Plaintiffs JUDGMENT -against - Index No.: 654092-2019 KENDON THOMAS, Defendant" "Individual -and- AMRO CARE PT, P.C., LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C., NORTH SHORE HOME CARE SERVICES, INC., AVA CUSTOM SUPPLY INC., OPUS PSYCHOLOGICAL SERVICES P.C., SI ACUPUNCTURE, PC., METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, PROSPECT CHIROPRACTIC PLLC, CITIMEDICAL I,PLLC, MAURO CHIROPRACTIC P.C., HARBOR MEDICAL GROUP PC, ACUTUS RX, LLC, AK GLOBAL SUPPLY CORP, Defendants" "Medical Provider collectively, the Defendants. _________________________ ____________-------------------------------X Asher Grossman, Esq., 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 allthe facts and circumstance set forth herein based upon a review of the filemaintained by this office. Mutual," 2. Plaintiffs, hereinafter collectively referred to as "Liberty are insurance entities that have issued insurance policies in the State of New York. 1 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 3. This motion is respectfully submitted in support of the within application for Default Judgment against the non-answering and Summary Judgment against the Answering and Plaintiffs' Late-Answering Defendants, granting Plaintiffs the declaration they seek that the denials of the claims of the Individual Defendant are valid; and for Summary Judgment against the Answering parties based on the merits of this matter. In the alternative, should Summary Judgment be denied, Plaintiffs request an Order issuing a Preliminary Injunction staying allcases regarding the claims of Kendon Thomas regarding a motor vehicle accident of July 5, 2018 in any court of the State of New York or in any arbitration proceeding. 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 all No-Fault benefits allegedly due to any of the Medical Provider Defendants on assignment from the Individual Defendant, Kendon Thomas (hereinafter, "Thomas"). 6. This action arises out of claims for No-Fault reimbursement stemming from a motor vehicle accident involving Individual Defendant, Thomas, on July 5, 2018 (hereinafter "the occurrence"). 7. The Policy (hereinafter "the policy") in question was issued to Regina Miller under policy # AOS 22823665040 effective September 27, 2017 through September 27, 2018 with limits of no-fault medical billcoverage of $50,000 per person. 8. According to the police report, the accident occurred on Waltham Street at the 107* intersection of Avenue in Queens, New York. The operator of V1 (2013 Nissan sedan) stated 107* that he was traveling Westbound on Ave. At the intersection of Waltham St., he stopped for the Stop sign then proceeded to overtake the intersection, when the insured in V2 (1999 Nissan 2 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 sedan) hit his vehicle. The insured in V2 stated that while traveling Northbound on Waltham St. at 107d' the intersection of Ave., V1 never stopped at the stop sign and hit him. 9. Following the occurrence, Thomas began seeking medical treatment for his alleged injuries. 10. The Medical Provider Defendants then submitted bills on assignment from Thomas to the Plaintiffs seeking No-Fault and bodily injury reimbursement. 11. The following Medical Provider Defendants submitted bills for Thomas: All Billing for Kendon Thomas: AMRO CARE PT, P.C. 205.46 LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C. 1310.78 NORTH SHORE HOME CARE SERVICES, INC. 1744.00 AVA CUSTOM SUPPLY INC. 3209.56 OPUS PSYCHOLOGICAL SERVICES P.C. 1309.12 SI ACUPUNCTURE, PC. 3033.29 METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION 539.05 PROSPECT CHIROPRACTIC PLLC 1211.51 CITIMEDICAL I,PLLC 2670.40 MAURO CHIROPRACTIC P.C. 2428.99 HARBOR MEDICAL GROUP PC 2579.90 ACUTUS RX, LLC 1355.00 AK GLOBAL SUPPLY CORP 1718.94 Total Billing $23,316.00 12. The total medical billing under the claim to date is $23,316.00. 13. In the instant case, default judgment is appropriate as to the Non-Answering and Judgment against the Defendants because the Non- Defendants; Summary Answering (a) Answering Defendants failed to answer and appear in this action; (b) the Late-Answering Defendants failed to answer and appear in this action in a timely manner; (c) Individual Defendant Thomas failed to appear for his scheduled EUOs; 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 Thomas. 3 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT AGAINST THE ANSWERING DEFENDANTS AND DEFAULT JUDGMENT AGAINST THE NON-ANSWERING DEFENDANTS; AND A PERMANENT STAY STAYING ALL CASES EITHER IN ANY COURT OF THE STATE OF NEW YORK 14. Plaintiffs filed a Summons and Complaint against the Medical Provider Defendants and Individual Defendant 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". 15. Plaintiffs served the Defendants with the Summons and Complaint. Individual Defendant Thomas was served on August 10, 2019, Medical Provider Defendants Si Acupuncture and Harbor Medical Group P.C. were served on July 29, 2019, and the remainder of the Medical Provider Defendants were served on August 7, 2019. 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 firstclass mail to the last known addresses as listed in the Summons of allDefendants 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 Thomas was not enrolled in active military service as determined by a search of the "D" Department of Defense military database. Attached hereto as Exhibit is the 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: ACUTUS RX, LLC AVA CUSTOM SUPPLY INC. 4 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 KENDON THOMAS AMRO CARE PT, P.C. LAWRENCE CHIROPRACTIC DIAGNOSTIC SERVICES, P.C. NORTH SHORE HOME CARE SERVICES, INC. OPUS PSYCHOLOGICAL SERVICES P.C. PROSPECT CHIROPRACTIC PLLC SI ACUPUNCTURE, PC. 19. The following Defendants (hereinafter, "the Late-Answering Defendants") failed to timely answer the Summons and Complaint and as such should have Default Judgment entered against them for failure to timely answer the Summons & Complaint: AK GLOBAL SUPPLY CORP CITIMEDICAL I,PLLC METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION 20. The following Defendant (hereinafter the "Answering Defendant") answered the Summons and Complaint but should have Summary Judgment entered against iton the merits of this Action: HARBOR MEDICAL GROUP, PC A copy of allanswers are annexed hereto collectively as Exhibit "E". 21. Plaintiffs request the Court to issue a Default Judgment against the non-answering and Late-answering Defendants for failure to timely Answer the Complaint. Plaintiffs request the Plaintiffs' Court to issue Summary Judgment against the Answering Defendants in favor on the merits of this Action. 22. The No-Fault reimbursement laws of the State of New York call for the swift payment of medical bills by 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 bills for treatment unrelated to the accident, or those for which there is no coverage. Further, it allows 5 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 providers to conduct reasonable investigation and require Examinations under Oath of the parties to determine the legitimacy of the claims. 23. Upon receipt of the claim, an investigation into the claims was begun due to the high amount of billing received following a minor accident. As part of the investigation, Individual Defendant Thomas was asked to appear for an Examination under Oath (EUO). An Affidavit of the attorney who appeared for the EUOs to verify the treatment and facts of the loss is annexed hereto as Exhibit "F". 24. EUOs were scheduled for Thomas on September 17, 2018, October 4, 2018, October 25, 2018, and November 2, 2018. Letters scheduling the EUOs were sent to the claimant and to his attorney on September 7, 2018, September 18, 2018, October 16, 2018, and October 25, 2018. The EUO on October 25, 2018 was rescheduled; Thomas did not appear for any of the remaining scheduled EUOs. The EUO notification letters for Thomas and his attorney are attached hereto as Exhibit "G". 25. The attorney who appeared to conduct the EUO of Thomas made statements on the record regarding his failure to appear for the properly notified and scheduled EUOs. An Affidavit from the appearing attorney is annexed hereto as Exhibit "F". 26. Based on the failure to appear for the Examinations Under Oath, Plaintiffs timely denied all bills submitted by the Medical Provider Defendants. The EUO no-show transcripts Thomas' evidencing failure to appear are annexed hereto as Exhibit "H". 27. An Examination Under Oath tool is a verification demand that the insurer has in order to weed out fraudulent claims of allconcerns, be itthe 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 6 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 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 belief" investigator's unrefuted assertion of a "fact or founded that the alleged injury did not arise out of an insured incident. Jee 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 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. assignor." Moreover, "an assignee stands in the shoes of the 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). 28. The theme whereby the claimant fails to complete the condition precedent is never more in play when he failsto appear for the requested Independent Medical Examination ("IME") or as in this instance, the requested Examination under Oath ("EUO"). In Unitrin Advantage Ins. (1" Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 Dept, 2011), the Appellate Division, First Department held "The failure to appear for IMEs requested by the insurer "when, and as require" often as, [it] may reasonably (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 defendants' 246, 681 N.E.2d 413 [1997]. Accordingly, when 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 ( SeeInsurance Department Regulations [11 217)." NYCRR] § 65-3.8 [c];Fogel, 35 A.D.3d at 721-22, 827 N.Y.S.2d Unitrin Advantage, at 1. 29. 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., 7 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 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 (See Insurance Department Regulations [11 65- policy NYCRR] § 1.1; Stephen Fogel Psychological. P.C., 35 AD3d at 722; W& Z 51732[U])." Acupuncture, P.C., 24 Misc.3d 142[A], 2009 N.Y. Slip Op Crotona Heights Medical, P.C., at 1. 30. Recently 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. 31. Plaintiffs demonstrated its entitlement to a Default Judgment against the Defendants by submitting proof of service of the summons and complaint, proof of the facts Defendants' constituting its claim, and proof of the default in answering or appearing (see CPLR 3215[fj; 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 (2nd N.Y.S.2d 428 Dept., 2010). Proof of Service is set forth through the Affidavits of Service attached to this motion. 32. 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 "B-C." Plaintiffs' through the Secretary of State. See Exhibits timely denials are annexed hereto as Exhibit "I". 33. The Non-Answering and Late-Answering Medical Provider Defendants have failed to timely answer the allegations contained in the properly served pleadings. Accordingly, Plaintiffs are entitled under CPLR 3215 to a default judgment on the merits in allrespects; therefore, Plaintiffs 8 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 request the Court to issue a Default Judgment against the Non-Answering and Late-Answering Defendants for failure to timely Answer the Complaint. 34. Plaintiffs have also demonstrated their entitlement to Summary Judgment against the Answering Defendant based on the foregoing. ShouldDefault Judgment, Summary 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 35. 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); Z_ap_pone 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 initiallyor itdoes 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]. 36. 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 reliefis or could be claimed. If the Court declines to grounds." render such a judgment itshall state its 37. 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 delay." may tend to avoid unnecessary costs or 38. Generally, Plaintiffs concede that No-Fault benefit claims should not be consolidated unless the facts and circumstances arise from a common accident. Metro Medical 9 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 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, 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 firstinstance, any and allNo-Fault claims separately filed in either court or arbitration as assignee of the Individual and Insured Defendants should be consolidated together and allof them resolved herein based on a Plaintiffs' Plaintiffs' determination as to whether the denials are valid. Therefore, the request for a Plaintiffs' Preliminary Injunction in effect staying allcases and arbitrations must be granted. timely denials are annexed hereto as Exhibit "I". 39. 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 itsfavor. (See St. Paul Travelers Ins. Co. v. Nandi, 15 Misc.3d 1145(A), 7 [2007] citingDoe 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].) 40. 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 chance of success is overwhelming. See Exhibits "G - I". The Affidavit of the Claims likely Department Team Manager regarding the billhandling process and timely denials is attached hereto as Exhibit "J". 41. Next, itmust 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 10 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 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. 42. 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 itsNo-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 Hoso. of Richmond v. Government Emols. 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 fcL 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 2008])." [U] [App Term, 9th & 10th Jud Dists 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. 43. 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 11 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 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]. "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 recovery." material breach of contract, and to preclude Levy v. Chubb Ins., 240 AD2d 336 [1997]. 44. 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 coverage" premised on no 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 Defendants' irrelevant, as 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. 45. 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. 46. 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 12 of 15 FILED: NEW YORK COUNTY CLERK 07/14/2020 02:15 PM INDEX NO. 654092/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/14/2020 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 initiallyor itdoes not exist at all.See Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185 [2000]; CGU Ins. v. Guadagm, 280 AD2d 509 [2d Dept 2001]. 47. An assignee does not stand in a better position than his assignor. "He is subject to allthe equities and burdens which attach to the property assigned because he receives no more and assignor." can do no more than his See Int'1 Ribbon 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). 48. Policyholders and their assignors may be treated by the Plaintiffs as ineligible for coverage under the A.B. Med. Services PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 11- policy, 8, 12 (App Term 2006). Defendants, as assignees of all the rights, privileges, and remedies, stands in the shoes of the Individual Defendant and as assignees acquired no greater rights than he had. Jee New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 17 N.Y.3d 586, 592 (2011). 49. 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 reliefis or could be claimed. If the Court declines to grounds." render such a judgment itshall state its