Complaint,Petition: American Transit Insurance Company v. Musa Kromah, Azcare Inc., Citimedical I, Pllc, D.U.P. Physical Therapy, P.C., Gentle Way Chiropractic P.C., Malaga Medical P.C., Mcculloch Orthopaedic Surgical Services, P.L.L.C., Medaid Radiology Llc

On May 21, 2021 a Complaint,Petition was filed involving a dispute between American Transit Insurance Company, and Azcare Inc., Citimedical I, Pllc, D.U.P. Physical Therapy, P.C., Gentle Way Chiropractic P.C., Malaga Medical P.C., Mcculloch Orthopaedic Surgical Services, P.L.L.C., Medaid Radiology Llc, Musa Kromah, for Other Matters - Contract - Other in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 05/21/2021 02:45 PM INDEX NO. 154998/2021
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/21/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
___________________________________________XXX
AMERICAN TRANSIT INSURANCE Date Summons and
COMPANY Complaint filed:
Plaintiff,
Index #:
-against-
SUMMONS
MUSA KROMAH, AZCARE INC.,
CITIMEDICAL I, PLLC, D.U.P. PHYSICAL
THERAPY, P.C., GENTLE WAY Plaintiff designates NEW YORK
CHIROPRACTIC P.C., MALAGA MEDICAL County as the place of trial.
P.C., MCCULLOCH ORTHOPAEDIC
SURGICAL SERVICES, P.L.L.C., MEDAID
RADIOLOGY LLC
The basis of venue is
residence of parties

Defendants
__________________________________________XXX
To the above named Defendant(s)
YOU ARE HEREBY SUMMONED to answer the complaint in the action and to serve a
copy of your answer, or, if the complaint is not served with this summons to serve a notice of
appearance, on the plaintiff’s Attorney(s) within 20 days after the service of this summons,
exclusive of the date of service, or within 30 thirty days after service is complete if the summons
is not personally delivered to you in the State of New York. In case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded in the Complaint.
The Plaintiff hereby designates the County of NEW YORK as the proper venue of the trial of this
action since the parties have offices and conduct business in this County.

Dated: Brooklyn, New York Yours, etc.
5/17/2021

____________________________________
Ethan A. Rothschild, Esq.
Law Offices of Daniel J. Tucker
One MetroTech Center, 7th Floor
Brooklyn, New York 11201
(212) 857-8200
Our File Number: 230116
Our Claim Number: 1071540-01

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TO: MUSA KROMAH
769 FOREST AVENUE
APT 2
BRONX, NY 10456

AZCARE INC.
14 AVENUE T
BROOKLYN, NY 11223

CITIMEDICAL I, PLLC
C/O FRIEDMAN HARFENIST KRAUT & PERLSTEIN, LLP
3000 MARCUS AVE, 2E1
LAKE SUCCESS, NY 11042

D.U.P. PHYSICAL THERAPY, P.C.
601 SOUTHERN BLVD.
BRONX, NY 10455

GENTLE WAY CHIROPRACTIC P.C.
216 FULTON STREET 2A
FARMINGDALE, NY 11735

MALAGA MEDICAL P.C.
560 PROSPECT AVENUE
BRONX, NY 10455

MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES, P.L.L.C.
105 DUANE ST. APT 22G
NEW YORK, NY 10007

MEDAID RADIOLOGY LLC
481 NORTH 13TH ST.
NEWARK, NJ 07101

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
___________________________________________XXX
AMERICAN TRANSIT INSURANCE COMPANY Index #:

Plaintiff, VERIFIED COMPLAINT

-against-

Defendants.
__________________________________________XXX

The Plaintiff, AMERICAN TRANSIT INSURANCE COMPANY, by its attorneys, The

Law Offices of Daniel J. Tucker, as and for its Verified Complaint herein, alleges as follows:

1. At all times hereinafter mentioned, the Plaintiff, AMERICAN TRANSIT INSURANCE

COMPANY (AMERICAN TRANSIT), is an insurance company, duly licensed to transact

business in the State of New York.

2. At all times hereinafter mentioned, the Plaintiff, AMERICAN TRANSIT, is headquartered

in and has offices located at One MetroTech Center, Brooklyn, New York 11201.

3. At all times hereinafter mentioned the defendant MUSA KROMAH is a New York State

resident and resides at 769 FOREST AVENUE, APT 2, BRONX, NY 10456.

4. At all times hereinafter mentioned the defendant AZCARE INC. was and still is a domestic

company authorized to conduct business in the State of New York, and resides at 14 AVENUE T,

BROOKLYN, NY, 11223.

5. At all times hereinafter mentioned the defendant CITIMEDICAL I, PLLC was and still is

a domestic company authorized to conduct business in the State of New York, and resides at C/O

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FRIEDMAN HARFENIST KRAUT & PERLSTEIN, LLP, 3000 MARCUS AVE, 2E1, LAKE

SUCCESS, NY, 11042.

6. At all times hereinafter mentioned the defendant D.U.P. PHYSICAL THERAPY, P.C. was

and still is a domestic company authorized to conduct business in the State of New York, and

resides at 601 SOUTHERN BLVD., BRONX, NY, 10455.

7. At all times hereinafter mentioned the defendant GENTLE WAY CHIROPRACTIC P.C.

was and still is a domestic company authorized to conduct business in the State of New York, and

resides at 216 FULTON STREET 2A, FARMINGDALE, NY, 11735.

8. At all times hereinafter mentioned the defendant MALAGA MEDICAL P.C. was and still

is a domestic company authorized to conduct business in the State of New York, and resides at

560 PROSPECT AVENUE, BRONX, NY, 10455.

9. At all times hereinafter mentioned the defendant MCCULLOCH ORTHOPAEDIC

SURGICAL SERVICES, P.L.L.C. was and stillis a domestic company authorized to conduct

business in the State of New York, and resides at 105 DUANE ST. APT 22G, NEW YORK, NY,

10007.

10. At all times hereinafter mentioned the defendant MEDAID RADIOLOGY LLC was and

still is an unauthorized foreign company transacting business in the State of New York, and resides

at 481 NORTH 13TH ST., NEWARK, NJ, 07101.

11. At all times hereinafter mentioned the plaintiff, AMERICAN TRANSIT, was licensed to

provide automobile liability insurance, including the mandatory no-fault endorsement, to residents

of the State of New York.

12. Plaintiff provided a policy of insurance to its insured HERMANY INC, under a New York

policy of insurance numbered CAP 608045.

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13. The policy of insurance that the plaintiff provided to HERMANY INC included a no-fault

endorsement which provided coverage to an insured or an eligible injured person in the amount of

at least $50,000 for all necessary expenses resulting from a motor vehicle accident, and was in

effect on October 23, 2019 as noted below.

14. The policy of insurance contained the mandatory no-fault endorsement prescribed by the

New York State Insurance Department, which started in part:

MANDATORY PERSONAL INJURY PROTECTION
ENDORSEMENT NEW YORK

SECTION 1 – MANDATORY PERSONAL INJURY PROTECTION
The Company will pay first party benefits to reimburse for basic economic loss
sustained by an eligible injured person on account of personal injuries caused by
the an accident arising out of the use or operation of a motor vehicle or a
motorcycle during the policy and within the United States of America, its
territories of possessions, or Canada.

15. The applicable no-fault statute permits insurers to request an independent medical

examination. Specifically, New York Codes of Rules and Regulations 65-1.1 provides in pertinent

part:

CONDITIONS

Action Against Company. No action shall lie against the Company unless, as a
condition precedent thereto, there shall have been full compliance with the terms
of this coverage.

Upon request by the Company, the eligible injured person or that person’s
assignee or representative shall:

(a) Execute a written proof of oath;
(b) As may reasonably be required to submit to examinations under oath by any
person named by the Company and subscribe the same.
(c) Provide authorization that will enable the Company to obtain medical
records; and
(c) Provide authorization that will enable the Company to obtain medical
records; and
(d) Provide any other pertinent information that may assist the Company in
determining the amount due and payable.

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The eligible injured person shall submit to medical examination by physicians
selected by, or acceptable to, the Company when, and as often as, the Company
may reasonably require.

16. On October 23, 2019, the insured HERMANY INC was involved in a motor vehicle

accident. The claimant, MUSA KROMAH was the driver of the insured vehicle, and made a claim

to the Plaintiff, AMERICAN TRANSIT, as a purported eligible injured person of the above-

referenced insurance policy, under claim # 1071540-01.

17. AMERICAN TRANSIT received notice of the subject accident from MUSA KROMAH.

18. MUSA KROMAH completed an application of benefits wherein he listed his address as

769 FOREST AVENUE, APT 2, BRONX, NY 10456.

19. As a result of the aforesaid motor vehicle accident, MUSA KROMAH sought no- fault

benefits from the defendants.

20. MUSA KROMAH assigned his rights to collect no-fault benefits to various health care

providers including the defendants.

21. In addition, MUSA KROMAH has an independent right to collect no-fault benefits in his

own right.

22. The defendants have submitted claims to the plaintiff with an assignment of benefits from

MUSA KROMAH and alleging that they had rendered services that are compensable under the

terms of the policy.

23. The defendants have commenced or have the right to commence actions or arbitrations

against the Plaintiff, in accordance with Article 51 of the Insurance Law for purportedly overdue

no-fault benefits.

24. Pursuant to the no-fault endorsement, American Transit Insurance Company and/or its

agent(s) requested that MUSA KROMAH appear for an Independent Medical Examination.

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25. On January 20, 2020, American Transit Insurance Company and/or its agent(s), sent to the

Claimant Defendant and his attorney, THE HAMEL LAW FIRM, P.C., at the address provided on

the application for benefits and the attorney letter of representation, a notice requesting that he

attend an Independent Medical Examination (“IME”) on February 13, 2020 at 2:00 PM at 3233

WESTCHESTER AVENUE, BRONX, NY, 10461 with Dr. MICHAEL RUSS.

26. MUSA KROMAH failed to attend this IME on February 13, 2020.

27. On February 17, 2020, American Transit Insurance Company and/or its agent(s), sent to

the Claimant Defendant and his attorney, THE HAMEL LAW FIRM, P.C., at the address provided

on the application for benefits and the attorney letter of representation, a notice requesting that he

attend an Independent Medical Examination (“IME”) on March 2, 2020 at 3:30 PM at 2114

WILLIAMSBRIDGE ROAD, LOWER LEVEL ROOM 110, BRONX, NY, 10461 with Dr.

MICHAEL RUSS.

28. MUSA KROMAH failed to attend this IME on March 2, 2020.

29. Despite multiple requests by American Transit Insurance Company and numerous attempts

at scheduling an Independent Medical Examination, MUSA KROMAH, refused to appear.

30. Despite all of American Transit Insurance Company’s efforts, MUSA KROMAH has

refused to submit to a medical examination by physicians selected by or acceptable to American

Transit Insurance Company.

31. The American Transit Insurance Company policy, in addition to the Regulations 11

NYCRR 65-1.1, provide that no action shall lie against American Transit Insurance company to

recover under the mandatory personal protection coverage, unless as a condition precedent thereto,

there shall have been full compliance with the terms of coverage, including that the eligible injured

person shall submit to an independent medical examination (or examination under oath).

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32. The Insurance Department of the State of New York, issued an opinion on February 11,

2003. According to the Insurance Department, “when an eligible injured person fails to comply

with a No-Fault insurer’s reasonable request for a medical examination (or examination under

oath), that person has failed to meet a condition precedent for No-Fault coverage…therefore, any

pending claim submitted for services rendered may be denied by the insurer due to the policy

breach and resulting lack of coverage.” See Ins. Dept., opinion #03-02-12, 2/11/2003, at

http://ins.state.ny.us/rg030212.htm.

33. Plaintiff, American Transit Insurance Company, denied all coverage to the defendants due

to the assignor’s failure to attend duly scheduled IMEs. The denials on the prescribed NF-10 forms

were mailed to the defendants in accordance with American Transit Insurance Company’s mailing

procedures. The denials indicated that the claims were denied as the eligible injured person failed

to appear for IME, thereby, failing to abide the policy condition requiring his to submit to an

independent medical examination.

AS AND FOR A CAUSE OF ACTION AGAINST ALL DEFENDANTS
FOR DECLARTORY JUDGMENT

34. Plaintiff reiterates, incorporates, and realleges the allegations set forth in paragraphs

numbered 1-33 as if fully set forth herein.

35. Plaintiff AMERICAN TRANSIT filed this action seeking a determination that there is no

coverage as to those that seek no fault reimbursement from plaintiff, as assignees of MUSA

KROMAH.

36. Plaintiff properly scheduled IMEs and gave the assignor several opportunities to attend the

IMEs. The assignor failed to appear for the properly scheduled IMEs.

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37. The Plaintiff’s policy and the New York Rules and Regulations, require full compliance

with terms of coverage, including that the eligible injured person shall submit to an independent

medical examination.

38. Plaintiff is entitled to a declaration that the eligible injured person violated a condition

precedent to coverage by failing to appear for the scheduled IMEs. As a result, the plaintiff was

allowed to deny coverage for the accident retroactive to the date of loss.

39. Plaintiff is entitled to a declaration that it properly denied all no-fault coverage due to the

violation of the terms and conditions of the policy of insurance.

40. Plaintiff is entitled to a declaration that there is no coverage for any and all first party

benefits arising out of the October 23, 2019 accident.

41. Plaintiff is entitled to a declaration that the defendants MUSA KROMAH, AZCARE INC.,

CITIMEDICAL I, PLLC, D.U.P. PHYSICAL THERAPY, P.C., GENTLE WAY

CHIROPRACTIC P.C., MALAGA MEDICAL P.C., MCCULLOCH ORTHOPAEDIC

SURGICAL SERVICES, P.L.L.C., MEDAID RADIOLOGY LLC, are not entitled to payment of

the assigned no-fault benefits for treatment rendered to MUSA KROMAH as a result of the

October 23, 2019 accident.

WHEREFORE, Plaintiff demands a Declaratory Judgment that the Defendant MUSA

KROMAH, has breached a policy condition of the American Transit policy and therefore, the

defendants MUSA KROMAH, AZCARE INC., CITIMEDICAL I, PLLC, D.U.P. PHYSICAL

THERAPY, P.C., GENTLE WAY CHIROPRACTIC P.C., MALAGA MEDICAL P.C.,

MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES, P.L.L.C., MEDAID RADIOLOGY

LLC, are not entitled to no-fault coverage or first party coverage, as a result of a motor vehicle

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accident that occurred on October 23, 2019, and that none of the defendants are entitled to first

party no-fault benefits, together with costs and disbursements of this action.

Dated: Brooklyn, New York Yours, etc.
5/17/2021

TO: MUSA KROMAH
769 FOREST AVENUE
APT 2
BRONX, NY 10456

AZCARE INC.
14 AVENUE T
BROOKLYN, NY 11223

CITIMEDICAL I, PLLC
C/O FRIEDMAN HARFENIST KRAUT & PERLSTEIN, LLP
3000 MARCUS AVE, 2E1
LAKE SUCCESS, NY 11042

D.U.P. PHYSICAL THERAPY, P.C.
601 SOUTHERN BLVD.
BRONX, NY 10455

GENTLE WAY CHIROPRACTIC P.C.
216 FULTON STREET 2A
FARMINGDALE, NY 11735

MALAGA MEDICAL P.C.
560 PROSPECT AVENUE
BRONX, NY 10455

MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES, P.L.L.C.

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105 DUANE ST. APT 22G
NEW YORK, NY 10007

MEDAID RADIOLOGY LLC
481 NORTH 13TH ST.
NEWARK, NJ 07101

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Index No.:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
AMERICAN TRANSIT INSURANCE COMPANY,

Plaintiff,
-against-

MUSA KROMAH, AZCARE INC., CITIMEDICAL I, PLLC, D.U.P. PHYSICAL THERAPY, P.C., GENTLE WAY
CHIROPRACTIC P.C., MALAGA MEDICAL P.C., MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES,
P.L.L.C., MEDAID RADIOLOGY LLC
Defendant.
-------------------------------------------------------------------------------------------------------------------------------------

SUMMONS AND VERIFIED COMPLAINT

-----------------------------------------------------------------------------------------------------------------------------------------------------
LAW OFFICES OF DANIEL J. TUCKER
ATTORNEY FOR PLAINTIFF
ONE METROTECH CENTER, 7TH FLOOR
BROOKLYN, NEW YORK 11201
(212) 857-8200
-----------------------------------------------------------------------------------------------------------------------------------------------------
TO:
Attorney(s) for: Plaintiff
-----------------------------------------------------------------------------------------------------------------------------------------------------
Service of a copy of the within is hereby admitted.

Dated,
by:
Attorney(s) for:
-----------------------------------------------------------------------------------------------------------------------------------------------------
PLEASE TAKE NOTICE
that the within is a true copy of a entered in the office of the clerk of the within named
NOTICE OF Court on
ENTRY
that an Order of which the within is a true copy will be presented for settlement to the Hon.
one of the judges of the within named Court, at
NOTICE OF on , at 9:30 a.m.
SETTLEMENT
Dated:
LAW OFFICES OF DANIEL J. TUCKER
ATTORNEY FOR PLAINTIFF
One MetroTech Center, 7th Floor
Brooklyn, New York 11201
(212) 857-8200

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Case Info

Case No.

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Document Filed Date

May 21, 2021

Case Filing Date

May 21, 2021

County

Parties

AMERICAN TRANSIT INSURANCE COMPANY Plaintiff
AZCARE INC. Defendant
CITIMEDICAL I, PLLC Defendant
D.U.P. PHYSICAL THERAPY, P.C. Defendant
GENTLE WAY CHIROPRACTIC P.C. Defendant
MALAGA MEDICAL P.C. Defendant
MCCULLOCH ORTHOPAEDIC SURGICAL SERVICES, P.L.L.C. Defendant
MEDAID RADIOLOGY LLC Defendant
Musa Kromah Defendant
ROTHSCHILD, ETHAN A Attorney for the Plaintiff
DANIEL TUCKER Attorney

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Complaint,Petition: American Transit Insurance Company v. Musa Kromah, Azcare Inc., Citimedical I, Pllc, D.U.P. Physical Therapy, P.C., Gentle Way Chiropractic P.C., Malaga Medical P.C., Mcculloch Orthopaedic Surgical Services, P.L.L.C., Medaid Radiology Llc

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