Preview
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------X
LIBERTY MUTUAL INSURANCE COMPANY
and LIBERTY MUTUAL FIRE INSURANCE
COMPANY
Plaintiffs, AFFIRMATION IN SUPPORT
OF MOTION FOR DEFAULT
-against- JUDGMENT
MICHELLE S. CARTER, Index No.: 652670/2018
“Indivdual Defendant”
-and-
ARON ROVNER MD, PLLC,
BROOK CHIROPRACTIC OF NY P.C.,
CITIMEDICAL I, PLLC,
DIGNITY PT, P.C.,
FRANK SAUCHELLI, M.D.,
GENTLE CARE ACUPUNCTURE, P.C.,
JULES FRANCOIS PARISIEN
JULY PT, P.C.,
LEFFERTS GARDENS CHIROPRACTIC P.C.,
LIFE REHAB PT, P.C.,
LONGEVITY MEDICAL SUPPLY, INC.,
NYC COMMUNITY MEDICAL CARE P.C.,
QUANTUM REHAB, PHYSICAL THERAPY, P.C.,
YJR ACUPUNCTURE P.C.,
"Medical Provider Defendants"
collectively, the Defendants.
--------------------------------------------------------------------X
Geraldine Aine, 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 & Dillon, 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 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 the Non-Answering parties, granting Plaintiffs the declaration it seeks
that the Plaintiffs’ denials of the claims of the Individual Defendant are valid.
4. No prior motion for the relief requested herein has been made to this or any court.
1 of 8
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
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, MICHELLE S. CARTER (hereinafter,
“CARTER”).
6. This action arises out of claims for No-Fault reimbursement stemming from a motor
vehicle accident involving Individual Defendant, CARTER on September 24, 2017 (hereinafter
referred to as “the occurrence”).
7. The policy (“the policy”) in question was issued to Individual Defendant (name) under
policy # AO222841577840, effective August 9, 2017 thru May 24, 2018 with limits of no-fault
medical bill coverage of $50,000.
8. According to the police report, the accident occurred, on September 24, 2017.
The insured, CARTER was traveling in her 2013 White Lexus = V1 westbound on Linden
Boulevard. at or near the intersection of E. 43rd St. in Kings County, Brooklyn, NY she was stopped
at a Red traffic light when a 2013 KIA SUV = V2 containing passengers was distracted by one of
the passengers and stepped on the gas by mistake and rear-ended into V1 causing the accident.
9. Following the occurrence, the Individual Defendant began seeking medical treatment
for her alleged injuries.
10. The Medical Provider Defendants then submitted bills on assignment from the
Individual Defendant to the Plaintiffs seeking No-Fault and bodily injury reimbursement.
11. The following Medical Provider Defendants submitted bills for Michelle S. Carter:
All Billing Michelle S. Carter:
ARON ROVNER MD, PLLC, $104.08
BROOK CHIROPRACTIC OF NY P.C., $3674.64
CITIMEDICAL I, PLLC, $2750.28
DIGNITY PT, P.C., $925.54
FRANK SAUCHELLI, M.D., $190.00
GENTLE CARE ACUPUNCTURE, P.C., $252.35
JULES F PARISIEN $3185.63
JULY PT, P.C., $492.00
LEFFERTS GARDENS CHIROPRACTIC P.C., $2400.00
LIFE REHAB PT, P.C., $4758.04
LONGEVITY MEDICAL SUPPLY, INC., $1919.17
NYC COMMUNITY MEDICAL CARE P.C., $1645.68
QUANTUM REHAB, PHYSICAL THERAPY, P.C., $967.20
YJR ACUPUNCTURE P.C., $1409.66
TOTAL $24,674.27
2 of 8
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
12. The total medical billing under the claim to date is $24,674.27.
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 CARTER materially
misrepresented the policy address and garaging location of the vehicle at the time of policy
procurement; (c) and 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
CARTER.
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. 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 upon allDefendants at 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
is annexed hereto as Exhibit “C”.
17. It should be noted that, as of 30 days from the filing of this motion, Individual
Defendant CARTER was not enrolled in active military service as determined by a search of the
Department of Defense military database. Attached hereto as Exhibit “D” 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:
ARON ROVNER MD, PLLC,
CITIMEDICAL I, PLLC,
DIGNITY PT, P.C.,
FRANK SAUCHELLI, M.D.,
GENTLE CARE ACUPUNCTURE, P.C.,
JULY PT, P.C.,
LEFFERTS GARDENS CHIROPRACTIC P.C.,
LIFE REHAB PT, P.C.,
NYC COMMUNITY MEDICAL CARE P.C.,
QUANTUM REHAB, PHYSICAL THERAPY, P.C.
3 of 8
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
19. Plaintiffs request the Court to issue a Default Judgment against the Non-Answering
Defendants for failure to timely Answer the Complaint.
20. Medical Provider Defendants, BROOK CHIROPRACTIC OF NY P.C., JULES F
PARISIEN, LONGEVITY MEDICAL SUPPLY, INC. and YJR, ACUPUNCTURE P.C., filed
their answers. A copy of the same is annexed hereto marked collectively as Exhibit “E”.
21. On February 8, 2019, Plaintiffs filed with this Court a Partial Stipulation of
Discontinuance with Medical Provider Defendants, BROOK CHIROPRACTIC OF NY P.C.,
JULES F PARISIEN and LONGEVITY MEDICAL SUPPLY, INC., only. A copy of the Partial
Stipulation of Discontinuance is annexed hereto as Exhibit “K”.
22. 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.
23. Following the initial submission of the bills by the Medical Provider Defendants
Liberty Mutual commenced an investigation into this claim due to suspected rate evasion, premium
avoidance and garaging. CARTER secured the policy using the address of 2894 Anderson St.,
Wantagh, New York. CARTER advised the investigator during a recorded interview that she stays
at the Hinsdale, Brooklyn, NY address due to the fact that she works at a hospital in Brooklyn. Her
tax records and paystubs reflect the Brooklyn, NY address. She receives all her mail at this address.
She further advised that the subject vehicle is garaged in Brooklyn, NY. She does not have any
proof of residency for the Wantagh, NY address. She lives with Barbra, an unknown person, when
she stays in Wantagh, NY on the weekends. Carter is in Brooklyn the rest of the time. She gets no
mail in Wantagh, NY there and does not pay rent. At the conclusion of the recorded interview
Carter confirmed she really lives in Brooklyn, NY. As part of the investigation an Examination
under Oath (“EUO”) of the Individual Defendant was requested. An affidavit of the Liberty
Mutual investigator is annexed hereto as Exhibit “F”.
24. On November 30, 2017, MICHELLE S. CARTER appeared for her EUO.
MICHELLE S. CARTER testified that: She is employed by Woodhall Hospital (in Brooklyn, NY) as
a nurse since 2004. Her license is registered to the Brooklyn, NY address. Her W’2 lists the
Brooklyn, NY address. Her Bank of America and MCU bank accounts also list the Brooklyn, NY
address. Her Federal and State income taxes for 2014, 2015 and 2016 reflect the Brooklyn, NY
4 of 8
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
address. She has never filed her income taxes using the Wantagh, NY address. She only has Verizon
wireless which lists the Brooklyn, NY address. She could not identify the alleged daily route from
Wantagh, NY to her job at Woodhall Hospital, Brooklyn, NY. She goes to church in Brooklyn, NY.
All her doctors are in Brooklyn, NY. She does not conduct any type of business in Wantagh, NY.
A copy of the transcript of the Examination under Oath is attached as Exhibit “G”.
25. It was clear from the above testimony that CARTER intentionally mislead the
Plaintiffs at the procurement of the Liberty policy that she lives in Wantagh, NY and the vehicle
would be garaged in Wantagh, NY. It is clear that he did not reside at the address in Wantagh, NY
according to the investigation and her own testimony. She could not produce any mail and/or other
documents that had the Wantagh, NY address on it. Further, a Vehicle Locater report determined
that the subject vehicle was not garaged at the policy address in Wantagh, New York. There were
three hundred seventy nine (379) hits for this vehicle between March 20, 2011 thru November 28,
2017 at the Hinsdale St., Brooklyn, New York address. The evidence shows that the location where
the insured vehicle was garaged was in Brooklyn, New York and not at the policy address in
Wantagh, New York.
26. Based upon information and belief and a review of the file, the policy address given
to us by MICHELLE S. CARTER was 2894 Anderson St., Wantagh, New York. Based on this
address, a policy AO222841577840, was created and issued to her with an annual premium of
$3,289.00 for the period of August 9, 2017 thru May 24, 2018.
27. Based on the investigation it is believed that, Defendant, MICHELLE CARTER is
an individual residing in the State of New York at 281 Hinsdale St., Brooklyn, New York.
28. Upon the Plaintiff’s discovery of the Individual Defendant’s correct address 281
Hinsdale St., Brooklyn, New York the policy was re-rated and the premium increased to $7,149.00.
Therefore, based upon information and belief and a review of the file, a policy for her with the
correct premium level for the Brooklyn, NY address, would have been approximately $3,860.00
more.
29. It is well settled law that material misrepresentation made at the time an insurance
policy is procured may lead to a policy being rescinded and/or avoided. See Syncora Guarantee Inc.
v. Countrywide Home Loans, Inc., 935 N.Y.S.2d 858 (N.Y. Sup., 2012); Carpinone v. Mutual of
Omaha Ins. Co., 697 N.Y.S.2d 381 (N.Y.App.Div.3.Dept., 1999).
30. Indeed, the Courts have ruled that misrepresentation of an insured policy address is
material and precludes an insured from recovery of benefits. To be sure, in AA Acupuncture
Service, P.C. v. Safeco Ins. Co. of America, 887 N.Y.S.2d 739 (N.Y.Sup., 2009), the court noted that
5 of 8
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
the insured, by misrepresenting his place of residence and the location where the insured vehicle
would be garaged, the insured “intentionally misrepresented his address in order to obtain insurance
at reduced premiums, precluding recovery of benefits, regardless of whether policy had actually been
cancelled; misrepresentation was material, since defendant would not have issued policy under same
terms had it known that insured resided in New York.” Id. at 31-32.
31. Based on the information above, it is clear that Individual Defendant CARTER
materially misrepresented her residence and fraudulently misled Plaintiffs by claiming to live in
Wantagh, New York in order to obtain a lower premium rate. The Affidavit of the Underwriter and
Certificate of Conformity regarding the policy premium difference is attached hereto as Exhibit
“H”.
32. Plaintiffs are therefore entitled to a Default Judgment against the Non-Answering
Defendants as Plaintiffs have satisfied its burden to the requested relief. That burden is satisfied as
follows:
“On a motion for leave to enter judgment against a defendant for the failure to answer or
appear, a plaintiff must submit proof of service of the summons and complaint, proof of
the facts constituting its claim, and proof of the defendant's default (See Mercury Cas. Co.
v. Surgical Ctr. at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218; Matone v. Sycamore
Realty Corp., 50 A.D.3d 978, 858 N.Y.S.2d 202).” Triangle Properties # 2, LLC v.
nd
Narang, 73 A.D.3d 1030, 903 N.Y.S.2d 424 (2 Dept., 2010).
33. Plaintiffs demonstrated its entitlement to a default judgment against the Non-
Answering Defendants by submitting proof of service of the summons and complaint, proof of the
facts constituting itsclaim, 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.
34. 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.
35. The 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 all respects.
36. Plaintiffs request the Court to issue a Default Judgment against the Non-Answering
6 of 8
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
Defendants for failure to timely Answer the Complaint.
37. 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].
38. 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’l 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 also Abraham v. Hanover Ins. Co., 66
A.D.2d 808, 411 N.Y.S. 2d 355 (2d Dep’t 1978).
39. Policyholders and their assignors may be treated by the Plaintiffs as ineligible for
coverage under the policy, A.B. Med. Services PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11-
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. See
New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 17 N.Y.3d 586, 592 (2011).
40. Further, based on the information submitted in support of Plaintiffs motion, Liberty
Mutual is entitled to the Declaration that it is not obligated to provide coverage or defense under the
policy to any of the Medical Provider Defendants based on the Individual Defendant’s
misrepresentation.
41. Plaintiffs have established its right to the declaration it seeks by tendering sufficient
evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct
judgment in the Plaintiffs’ favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46
N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). The evidence includes EUO transcripts, as well as the
affirmed affidavits of Plaintiffs’ claims representative and underwriter. This evidence is
overwhelming. Plaintiffs have met its burden of proof.
42. Therefore Liberty Mutual is not obligated to provide coverage or defense under the
policy based on proof that the Individual Defendant did knowingly and fraudulently misrepresent
information at the time of the policy inception and application as well as during the investigation of
the occurrence. Thereafter, Plaintiff timely denied all bills based on this evidence. Plaintiffs’ timely
denials of the individual defendants’ bills for treatment are annexed hereto as Exhibit “I”. The
7 of 8
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019
Affidavit of the Claims Department Team Manager regarding the timeliness of the denials is
attached hereto as Exhibit “J”.
43. The Medical Provider Defendants, as assignees of the Individual Defendant are not
entitled to compensation from Plaintiffs due to the misrepresentations of the Individual Defendant.
44. 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.
WHEREFORE, it is respectfully requested that the Court grant the within motion and
issue a Default Judgment against the non-answering Defendants, with dismissal of all claims by the
non-answering Defendants herein named and declaring that the Plaintiffs’ denials of all claims by the
non-answering 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 brought
by 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
May 29, 2019
____________________________
Geraldine Aine, 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
8 of 8
Preview
FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X LIBERTY MUTUAL INSURANCE COMPANY and LIBERTY MUTUAL FIRE INSURANCE COMPANY Plaintiffs, AFFIRMATION IN SUPPORT OF MOTION FOR DEFAULT -against- JUDGMENT MICHELLE S. CARTER, Index No.: 652670/2018 “Indivdual Defendant” -and- ARON ROVNER MD, PLLC, BROOK CHIROPRACTIC OF NY P.C., CITIMEDICAL I, PLLC, DIGNITY PT, P.C., FRANK SAUCHELLI, M.D., GENTLE CARE ACUPUNCTURE, P.C., JULES FRANCOIS PARISIEN JULY PT, P.C., LEFFERTS GARDENS CHIROPRACTIC P.C., LIFE REHAB PT, P.C., LONGEVITY MEDICAL SUPPLY, INC., NYC COMMUNITY MEDICAL CARE P.C., QUANTUM REHAB, PHYSICAL THERAPY, P.C., YJR ACUPUNCTURE P.C., "Medical Provider Defendants" collectively, the Defendants. --------------------------------------------------------------------X Geraldine Aine, 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 & Dillon, 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 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 the Non-Answering parties, granting Plaintiffs the declaration it seeks that the Plaintiffs’ denials of the claims of the Individual Defendant are valid. 4. No prior motion for the relief requested herein has been made to this or any court. 1 of 8 FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 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, MICHELLE S. CARTER (hereinafter, “CARTER”). 6. This action arises out of claims for No-Fault reimbursement stemming from a motor vehicle accident involving Individual Defendant, CARTER on September 24, 2017 (hereinafter referred to as “the occurrence”). 7. The policy (“the policy”) in question was issued to Individual Defendant (name) under policy # AO222841577840, effective August 9, 2017 thru May 24, 2018 with limits of no-fault medical bill coverage of $50,000. 8. According to the police report, the accident occurred, on September 24, 2017. The insured, CARTER was traveling in her 2013 White Lexus = V1 westbound on Linden Boulevard. at or near the intersection of E. 43rd St. in Kings County, Brooklyn, NY she was stopped at a Red traffic light when a 2013 KIA SUV = V2 containing passengers was distracted by one of the passengers and stepped on the gas by mistake and rear-ended into V1 causing the accident. 9. Following the occurrence, the Individual Defendant began seeking medical treatment for her alleged injuries. 10. The Medical Provider Defendants then submitted bills on assignment from the Individual Defendant to the Plaintiffs seeking No-Fault and bodily injury reimbursement. 11. The following Medical Provider Defendants submitted bills for Michelle S. Carter: All Billing Michelle S. Carter: ARON ROVNER MD, PLLC, $104.08 BROOK CHIROPRACTIC OF NY P.C., $3674.64 CITIMEDICAL I, PLLC, $2750.28 DIGNITY PT, P.C., $925.54 FRANK SAUCHELLI, M.D., $190.00 GENTLE CARE ACUPUNCTURE, P.C., $252.35 JULES F PARISIEN $3185.63 JULY PT, P.C., $492.00 LEFFERTS GARDENS CHIROPRACTIC P.C., $2400.00 LIFE REHAB PT, P.C., $4758.04 LONGEVITY MEDICAL SUPPLY, INC., $1919.17 NYC COMMUNITY MEDICAL CARE P.C., $1645.68 QUANTUM REHAB, PHYSICAL THERAPY, P.C., $967.20 YJR ACUPUNCTURE P.C., $1409.66 TOTAL $24,674.27 2 of 8 FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 12. The total medical billing under the claim to date is $24,674.27. 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 CARTER materially misrepresented the policy address and garaging location of the vehicle at the time of policy procurement; (c) and 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 CARTER. 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. 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 upon allDefendants at 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 is annexed hereto as Exhibit “C”. 17. It should be noted that, as of 30 days from the filing of this motion, Individual Defendant CARTER was not enrolled in active military service as determined by a search of the Department of Defense military database. Attached hereto as Exhibit “D” 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: ARON ROVNER MD, PLLC, CITIMEDICAL I, PLLC, DIGNITY PT, P.C., FRANK SAUCHELLI, M.D., GENTLE CARE ACUPUNCTURE, P.C., JULY PT, P.C., LEFFERTS GARDENS CHIROPRACTIC P.C., LIFE REHAB PT, P.C., NYC COMMUNITY MEDICAL CARE P.C., QUANTUM REHAB, PHYSICAL THERAPY, P.C. 3 of 8 FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 19. Plaintiffs request the Court to issue a Default Judgment against the Non-Answering Defendants for failure to timely Answer the Complaint. 20. Medical Provider Defendants, BROOK CHIROPRACTIC OF NY P.C., JULES F PARISIEN, LONGEVITY MEDICAL SUPPLY, INC. and YJR, ACUPUNCTURE P.C., filed their answers. A copy of the same is annexed hereto marked collectively as Exhibit “E”. 21. On February 8, 2019, Plaintiffs filed with this Court a Partial Stipulation of Discontinuance with Medical Provider Defendants, BROOK CHIROPRACTIC OF NY P.C., JULES F PARISIEN and LONGEVITY MEDICAL SUPPLY, INC., only. A copy of the Partial Stipulation of Discontinuance is annexed hereto as Exhibit “K”. 22. 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. 23. Following the initial submission of the bills by the Medical Provider Defendants Liberty Mutual commenced an investigation into this claim due to suspected rate evasion, premium avoidance and garaging. CARTER secured the policy using the address of 2894 Anderson St., Wantagh, New York. CARTER advised the investigator during a recorded interview that she stays at the Hinsdale, Brooklyn, NY address due to the fact that she works at a hospital in Brooklyn. Her tax records and paystubs reflect the Brooklyn, NY address. She receives all her mail at this address. She further advised that the subject vehicle is garaged in Brooklyn, NY. She does not have any proof of residency for the Wantagh, NY address. She lives with Barbra, an unknown person, when she stays in Wantagh, NY on the weekends. Carter is in Brooklyn the rest of the time. She gets no mail in Wantagh, NY there and does not pay rent. At the conclusion of the recorded interview Carter confirmed she really lives in Brooklyn, NY. As part of the investigation an Examination under Oath (“EUO”) of the Individual Defendant was requested. An affidavit of the Liberty Mutual investigator is annexed hereto as Exhibit “F”. 24. On November 30, 2017, MICHELLE S. CARTER appeared for her EUO. MICHELLE S. CARTER testified that: She is employed by Woodhall Hospital (in Brooklyn, NY) as a nurse since 2004. Her license is registered to the Brooklyn, NY address. Her W’2 lists the Brooklyn, NY address. Her Bank of America and MCU bank accounts also list the Brooklyn, NY address. Her Federal and State income taxes for 2014, 2015 and 2016 reflect the Brooklyn, NY 4 of 8 FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 address. She has never filed her income taxes using the Wantagh, NY address. She only has Verizon wireless which lists the Brooklyn, NY address. She could not identify the alleged daily route from Wantagh, NY to her job at Woodhall Hospital, Brooklyn, NY. She goes to church in Brooklyn, NY. All her doctors are in Brooklyn, NY. She does not conduct any type of business in Wantagh, NY. A copy of the transcript of the Examination under Oath is attached as Exhibit “G”. 25. It was clear from the above testimony that CARTER intentionally mislead the Plaintiffs at the procurement of the Liberty policy that she lives in Wantagh, NY and the vehicle would be garaged in Wantagh, NY. It is clear that he did not reside at the address in Wantagh, NY according to the investigation and her own testimony. She could not produce any mail and/or other documents that had the Wantagh, NY address on it. Further, a Vehicle Locater report determined that the subject vehicle was not garaged at the policy address in Wantagh, New York. There were three hundred seventy nine (379) hits for this vehicle between March 20, 2011 thru November 28, 2017 at the Hinsdale St., Brooklyn, New York address. The evidence shows that the location where the insured vehicle was garaged was in Brooklyn, New York and not at the policy address in Wantagh, New York. 26. Based upon information and belief and a review of the file, the policy address given to us by MICHELLE S. CARTER was 2894 Anderson St., Wantagh, New York. Based on this address, a policy AO222841577840, was created and issued to her with an annual premium of $3,289.00 for the period of August 9, 2017 thru May 24, 2018. 27. Based on the investigation it is believed that, Defendant, MICHELLE CARTER is an individual residing in the State of New York at 281 Hinsdale St., Brooklyn, New York. 28. Upon the Plaintiff’s discovery of the Individual Defendant’s correct address 281 Hinsdale St., Brooklyn, New York the policy was re-rated and the premium increased to $7,149.00. Therefore, based upon information and belief and a review of the file, a policy for her with the correct premium level for the Brooklyn, NY address, would have been approximately $3,860.00 more. 29. It is well settled law that material misrepresentation made at the time an insurance policy is procured may lead to a policy being rescinded and/or avoided. See Syncora Guarantee Inc. v. Countrywide Home Loans, Inc., 935 N.Y.S.2d 858 (N.Y. Sup., 2012); Carpinone v. Mutual of Omaha Ins. Co., 697 N.Y.S.2d 381 (N.Y.App.Div.3.Dept., 1999). 30. Indeed, the Courts have ruled that misrepresentation of an insured policy address is material and precludes an insured from recovery of benefits. To be sure, in AA Acupuncture Service, P.C. v. Safeco Ins. Co. of America, 887 N.Y.S.2d 739 (N.Y.Sup., 2009), the court noted that 5 of 8 FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 the insured, by misrepresenting his place of residence and the location where the insured vehicle would be garaged, the insured “intentionally misrepresented his address in order to obtain insurance at reduced premiums, precluding recovery of benefits, regardless of whether policy had actually been cancelled; misrepresentation was material, since defendant would not have issued policy under same terms had it known that insured resided in New York.” Id. at 31-32. 31. Based on the information above, it is clear that Individual Defendant CARTER materially misrepresented her residence and fraudulently misled Plaintiffs by claiming to live in Wantagh, New York in order to obtain a lower premium rate. The Affidavit of the Underwriter and Certificate of Conformity regarding the policy premium difference is attached hereto as Exhibit “H”. 32. Plaintiffs are therefore entitled to a Default Judgment against the Non-Answering Defendants as Plaintiffs have satisfied its burden to the requested relief. That burden is satisfied as follows: “On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default (See Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218; Matone v. Sycamore Realty Corp., 50 A.D.3d 978, 858 N.Y.S.2d 202).” Triangle Properties # 2, LLC v. nd Narang, 73 A.D.3d 1030, 903 N.Y.S.2d 424 (2 Dept., 2010). 33. Plaintiffs demonstrated its entitlement to a default judgment against the Non- Answering Defendants by submitting proof of service of the summons and complaint, proof of the facts constituting itsclaim, 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. 34. 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. 35. The 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 all respects. 36. Plaintiffs request the Court to issue a Default Judgment against the Non-Answering 6 of 8 FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 Defendants for failure to timely Answer the Complaint. 37. 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]. 38. 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’l 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 also Abraham v. Hanover Ins. Co., 66 A.D.2d 808, 411 N.Y.S. 2d 355 (2d Dep’t 1978). 39. Policyholders and their assignors may be treated by the Plaintiffs as ineligible for coverage under the policy, A.B. Med. Services PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11- 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. See New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 17 N.Y.3d 586, 592 (2011). 40. Further, based on the information submitted in support of Plaintiffs motion, Liberty Mutual is entitled to the Declaration that it is not obligated to provide coverage or defense under the policy to any of the Medical Provider Defendants based on the Individual Defendant’s misrepresentation. 41. Plaintiffs have established its right to the declaration it seeks by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the Plaintiffs’ favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). The evidence includes EUO transcripts, as well as the affirmed affidavits of Plaintiffs’ claims representative and underwriter. This evidence is overwhelming. Plaintiffs have met its burden of proof. 42. Therefore Liberty Mutual is not obligated to provide coverage or defense under the policy based on proof that the Individual Defendant did knowingly and fraudulently misrepresent information at the time of the policy inception and application as well as during the investigation of the occurrence. Thereafter, Plaintiff timely denied all bills based on this evidence. Plaintiffs’ timely denials of the individual defendants’ bills for treatment are annexed hereto as Exhibit “I”. The 7 of 8 FILED: NEW YORK COUNTY CLERK 05/29/2019 11:52 AM INDEX NO. 652670/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/29/2019 Affidavit of the Claims Department Team Manager regarding the timeliness of the denials is attached hereto as Exhibit “J”. 43. The Medical Provider Defendants, as assignees of the Individual Defendant are not entitled to compensation from Plaintiffs due to the misrepresentations of the Individual Defendant. 44. 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. WHEREFORE, it is respectfully requested that the Court grant the within motion and issue a Default Judgment against the non-answering Defendants, with dismissal of all claims by the non-answering Defendants herein named and declaring that the Plaintiffs’ denials of all claims by the non-answering 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 brought by 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 May 29, 2019 ____________________________ Geraldine Aine, 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 8 of 8