1. Denies any knowledge sufticient to fbrm a beliefas to each and every allegation contained in. 2. Admits to paragraph 2.

Transcription

1 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 09/25/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEMPER INDEPENDENCE INSURANCE COMPANY" Plaintiff. i(- FILED: NEW YORK COUNTY CLERK 09/25/2012 INDEX NO /2012 -against- ACUPLINCTURE APPROACH, PC. AMERICAN CHIROPRACTIC CARE, PC, ANESTHESIOLOGY ASSOCIATES OF BORO PARK. LLC. ATLANTIC CHIROPRACTIC, PC, HILLSIDE OPEN MRI, PC, HMP ORTHOPAEDICS. PC. INTEGRATIVE PAIN MEDICINE, PC, JKM MEDICAL CARE, PC, LEMONTI MEDICAL, PC, LONGEVITY MEDICAL SUPPLY, INC, NEW CAPITAL SUPPLY, INC, NEW MILLENNIUM PSYCHOLOGICAL, PC, PRECISION MEDICAL DIAGNOSTIC OFNY, PC, ULTIMATE HEALTH PRODUCTS, INC., UPPEREAST SIDE SURGICAL, PC, VISION REHAB PT, PC, PAUL CAMPBELL, THOMASA CAMPBELL, and PATRICK JAMES AI\SWER with CROSS-CLAIMS and COIINTERCLAIMS INDEXNo.: Defendants. Defendant, ACUPLTNCTURE APPROACH, PC, by its attomeys, Gary Tsirelman P.C., as and fbr its answer respectfully alleges upon information and beliefas follows: AIISWERING TIIE ALLEGATIONS CONTAINED IN *THE PARTIES' 1. Denies any knowledge sufticient to fbrm a beliefas to each and every allegation contained in the preceding paragraphs of the complaint therein designated as i and Admits to paragraph 2. AIISWERING THE ALLEGATIONS COI\ITAINED IN (THE DEFENDANTS' SPf,CIOUS NO- FAULT CLAIMS' &'DEFENDA}ITS' POLICT BREACII" 3. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraph of the complaint therein designated as 21, EXCEPT that, upon infbrmation and belief, an accident occurred on Febmary 26,2011.

2 4. Denies any knowledge or information suffrcient to form a beliefas to each and every allegation contained in the preceding paragraphs ofthe complaint therein designated as and, Denies any knowledge or information sufficient to form a beliefas to each and every allegation contained in the preceding paragraph of the complaint therein designated as 25, EXCEPT that, upon information and belief, defendants made claims for no-fault benefits. ANSWERING ALLf,,GATIONS CONTAINED IN *TOR A FIRST CAUSE OF ACTION'' 6. Repeats and reiterates each and every denial and denial of knowledge or information sufflcient to form a beliefas to each ofthe allegations of the complaint reiterated and realleged by Plaintiffin the preceding paragraph of the complaint therein designated as Denies any knowledge or information sufficient to form a beliefas to each and every allegation contained in the preceding paragraphs ofthe complaint therein designated as AI\SWERING ALLEGATIONS CONTAINED IN *FOR A SECOND CAUSE OF ACTION' 8. Repeats and reiterates each and every denial and denial of knowledge or information sufficient to form a belief as to each of the allegations ofthe complaint reiterated and realleged by Plaintiffin the preceding paragraph ofthe complaint therein designated as Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the preceding paragraphs of the complaint therein designated as A}ISWERING ALLEGATIONS CONTAINf,D IN "FOR A TIIIRD CAUSE OF ACTION' 10. Repeats and reiterates each and every denial and denial ofknowledge or information suflicient to form a beliefas to each of the allegations ofthe complaint reiterated and realleged by Plaintiff in the preceding paragraph of the complaint therein designated as 41.

3 11. Denies any knowledge or information sufficient to form a beliefas to each and every allegation contained in the preceding paragraphs ofthe complaint therein designated as A}TSWERING ALLEGATIONS CONTAINED IN "FOR A FOURTII CAUSE OF ACTION' 12. Repeats and reiterates each and every denial and denial ofknowledge or information sufflcient to form a beliefas to each ofthe allegations of the complaint reiterated and realleged by Plaintiff in the preceding paragraph ofthe complaint therein designated as Denies any knowledge or information sullicient to form a beliefas to each and every allegation contained in the preceding paragraphs of the complaint therein designated as AS FOR THE FIRST, SEPARATE, AND DISTINCT Plaintiff s complaint fails to state a proper and valid cause ofaclion in each and every cause of action upon which relief may be granted, and is thus fatally defective. AS FOR THE SECOND, SEPARATE, AND DISTINCT Plaintifflacks standing to bring this cause of action against the answering Defendants because the answering Defbndants owe no duty to Plaintiff. AS FOR THE THIRD, SEPARATE, AND DISTINCT Upon information and belief Plaintiff is barred from making this claim because ofthe failure of Plaintiff to comply with all the insurance laws, rules and regulations. AS FOR THE FOURTH, SEPARATE, AND DISTINCT The alleged causes ofaction are barred by any prior release or settlement. AS FOR THE FIFTH, SEPARATE, AND DISTINCT Statutes of limitations have expired on the Plaintiffs action. AS FOR THE SIXTH, SEPARATE, AND DISTINCT

4 Plaintiffs are barred from disclaiming liability under the doctrine oflatches and equitable estoppel. AS FORTHE SEVENTH, SEPARATE, AND DISTINCT AND COMPLETE AFFIRMATTVE DEFENSE: That in the event any judgment or verdict is rendered in favor ofplaintiff, the answering Defendants are entitled to have such judgment or verdict reduced by the amounts ofany collateral payments. AS FOR THE EIGHT, SEPARATE, AND DISTINCT Plaintiffhas failed to properly commence the instant action. AS FORTHENINTH, SEPARATE, AND DISTINCT All bills as submitted to Plaintiff by the answering Defendants were not fraudulent. AS FOR THE TENTH, SEPARATE, AND DISTINCT Plaintifflacks legal capacity to sue. AS FOR THE ELEVENTH, SEPARATE, AND DISTINCT Necessary parties have not been included as pafiies to this action. AS FOR THE TWELFTH, SEPARATE, AND DISTINCT Plaintiff will be unjustly enriched. AS FOR THE THIRTEENTH, SEPARATE, AND DISTINCT All answering Defendants did not deceive or cause to deceive the Plaintiff. AS FOR THE FOURTEENTH, SEPARATE, AND DISTINCT Plainti{fs damages ifany are the result of its own fraudulent practices. AS FOR THE FIFTEENTH, SEPARATE, AND DISTINCT There are other actions pending for the same causes ofaction, therefore, this case is baned. AS FOR THE SIXTEENTH, SEPARATE, AND DISTINCT All answering Defendants did not breach the provisions of the insurance policy issued by Plaintiff.

5 AS FORTHE SEVENTEENTH, SEPARATE, AND DISTINCT All answering Defendants are properly incorporated and operate pursuant to the applicable laws and regulations of the State ofnew York. AS FOR THE EIGHTEENTH, SEPARATE, AND DISTINCT All services provided to the claimants were performed by employees of Defendants. AS FOR THENINETEENTH, SEPARATE, AND DISTINCT The Court does not have personal jurisdiction over the answering defendants due to improper andior defective service ofprocess on the part ofthe plaintiff. AS FOR THE TWENTIETH, SEPARATE, AND DISTINCT This action is barred due to collateral estoppel and/or resjudicata. CROSS CLAIMS TO DEFENDAI\IT(S): YOU ARE HEREBY SIIMMOITIED to file your answer or reply with the Clerk, within the time provided by law as noted below. Upon your failure to answer or reply, judgment will be taken against you for the sum demanded in the Cross-Claim with interest thereon as specified in the Cross-Claim, together with the costs of this action. NOTE: The law provides that: (a) If this summons is personally served within the City of New York, you must appear and answer within TWENTY days after such service; OR (b) If this summons is served by any means other than personal delivery within the City of New York, you must appear and answer within THIRTY days after proof of service is filed with the Clerk of this Court. AS A}tD F'OR A F'IRST CROSS-CL{M AGAINST TIIE CO-DEX'ENDA}TT PAUL CAMPBELL AIJNJUST EITIRICHMENTII : 1. Upon information and belief, answering Defendant, ACUPUNCTURE APPROACH, PC provided medically necessary treatment/services to PAUL CAMPBELL for injuries allegedly sustained as a result ofan automobile accident on February 26"2011.

6 L That ACUPUNCTURE APPROACH, PC provided medically necess y medical treatmenvservices under circumstances implying an understanding by PAUL CAMPBELL and ACUPTINCTURE APPROACH, PC that ACUPLTNCTURE APPROACH, PC would be paid for its treatment/services. J. That ACUPUNCTURE APPROACH, PC to date has not been paid for the treatrnent/services it provided to PAUL CAMPBELL and under principles of equity and good conscience PAUL CAMPBELL should be required to pay for the treatment/services as the enrichment to PAUL CAMPBELL is unjust. 4. AS AITD FOR A SECOND CROSS-CL{M AGAINST TIIE CO-DEFENDAITT(S) PATJL CAMPBELL "QUANTUM MERT]IT": Upon information and belief, ansrvering Defendant, ACUPTINCTURE APPROACH, PC provided medically necessary treatment/services to PAUL CAMPBELL for the benefit of PAUL CAMPBELL for the injuries allegedly sustained as a result of an automobile accident on February 26, That ACUPUNCTURE APPROACH, PC provided medically necessary treatmenvservices under circumstances implying an understanding by PAUL CAMPBELL and ACUPI-INCTURE APPROACH, PC that ACUPTINCTURE APPROACH, PC would be paid for its treatmenvservices. o. That ACUPUNCTURE APPROACH, PC to date has not been paid for the treatment/services it provided to PAUL CAMPBELL and PAUL CAMPBELL is liable ro ACUPUNCTURE APPROACH, PC for the amount of the treatment/services as reflected in ACUPTINCTURE APPROACH, PC'S biii(s) to KEMPER INDEPENDENCE INSURANCE COMPANY. AS AI{D FOR A THIRD CROSS-CLAIM AGAINST THE CO-DET'ETIDAFTT THOMASA CAMPBELL "UNJUST EAIRICHMENT'':

7 7. Upon information and belief, answering Defendant, ACUPUNCTURE APPROACH, PC provided medically necessary treatment/services to THOMASA CAMPBELL for injuries allegedly sustained as a result ofan automobile accident on February 26, That ACUPUNCTURE APPROACH, PC provided medically necessary medical treatment/services under circumstances implying an understanding by THOMASA CAMPBELL and ACUPIINCTURE APPROACH, PC that ACUPLINCTURE APPROACH, PC would be paid for its treatmenvservices. 9. That ACUPUNCTURE APPROACH, PC to date has not been paid for the treatment/services it provided to THOMASA CAMPBELL and under principles of equity and good conscience THOMASA CAMPBELL should be required to pay for the treatmenvservices as the effichment to THoMASA CAMPBELL is unjust. AS AND FOR A FOT]RTH CROSS-CLAIM AGAINST TIIE CO-DEFENDAh{T(S) THOMASA CAMPBELL "QUA}ITI]M MERIIIT': 10. Upon information and belief, answering Defendant, ACUPTINCTURE APPROACH, PC provided medically necessary treatmenvservices to THOMASA CAMPBELL for the benefit of THOMASA CAMPBELL for the injuries allegedly sustained as a result of an automobile accident on February 26, I l. That ACUPLTNCTURE APPROACH, PC provided medically necessary treatment/services under circumstances implying an understanding by THOMASA CAMPBELL and ACUPUNCTURE APPROACH, PC that ACUPUNCTURE APPROACH, PC would be paid for i1s treatrnenvservices. 12. That ACUPTINCTURE APPROACH, PC to date has not been paid for its treatmenvservices it orovided to THOMASA CAMPBELL and THOMASA CAMPBELL is liable tii

8 ACUPTINCTURE APPROACH. PC for the amount of the treatmenvservices as reflected in ACUPUNCTURE APPROACH, PC'S biii(s) to KEMPER INDEPENDENCE INSURANCE COMPANY. AS AND FOR A FIFTH CROSS-CLAIM AGAINST THE CO-DEFENDAIIT PATRICK JAMES (T]NJUST EITIRICHMENTII: I 3. Upon information and belief, answering Defendant, ACUPIJNCTURE APPROACH, PC provided medically necessary treatmenvservices to PATRICK JAMES for injuries allegedly sustained as a result of an automobile accident on February 26, That ACUPUNCTURE APPROACH, PC provided medically necessary medical treatment/services under circumstances implying an understanding by PATRICK JAMES and ACUPTINCTURE APPROACH, PC that ACUPUNCTURE APPROACH, PC would be paid for its treatment/services. 15. That ACUPUNCTURE APPROACH, PC to date has not been paid for the treatment/services it provided to PATRICK JAMES and under principles of equity and good conscience PATRICK JAMES should be required to pay for the treatment/services as the enrichment to PATRICK JAMES is unjust. AS AI\ID FORA SIXTII CROSS-CLAIM AGAINST THE CO-DEFENDAIYT(S), 16. Upon information and belief, answering Defendant, ACUPLINCTURE APPROACH, PC provided medically necessary treatrnent/services to PATRICK JAMES for the benefit of PATRICK JAMES for the injuries allegedly sustained as a result of an automobile accident on Februarv

9 17. That ACUPLINCTURE APPROACH, PC provided medically necessary treatment/services under circumstances implying an understanding by PATRICK JAMES and ACUPIJNCTURE APPROACH, PC that ACUPUNCTURE APPROACH, PC would be paid for its treatmenvservices. 18. That ACUPUNCTURE APPROACH, PC to date has not been paid for the treatment/services it provided to PATRICK JAMES and PATRICK JAMES is liable to ACUPTINCTURE APPROACH, PC for the amount of the treatment/services as reflected in ACUPUNCTURE APPROACH, PC's bill(s) to KEMPER INDEPENDENCE INSURANCE COMPANY. AI\D AS T'ORA X'IRST COTJNTER-CLAIM Defendant-Plaintiff, ACUPLINCTURI APPROACH, PC, on the Counter-Claim (hereinafter, "PROVIDER") allege: t. Plaintiff-Defendant on the counter-claim, KEMPER INDEPENDENCE INSURANCE COMPANY, (hereinafter the "INSURER") issued an insurance contact to POLICYHOLDER requiring the INSURER to def'end orland indemnify the POLICYHOLDER and other eligible injured parties under the policies in any lawsuit involving the said insurance contract including in the actions brought by the INSURER. 2. Upon information and belief, PAUL CAMPBELL, THOMASA CAMPBELL, and PATRICK JAMES, the co-defendants' and PROVIDER'S assignors herein (hereinafter the "ASSIGNOR"), were involved in a motor vehicle accident on February 26, 201 1, while in a vehicle owned by the POLICYHOLDER and insured by the INSURER. 3. On or about May 1,2012, the INSURER commenced the instant declaratory judgment action in Suprerne Court of the State of New York, COUNTY OF NEW YORK, against the ASSIGNOR and PROVIDER, among others, seeking to declare that no insurance coverage

10 i Due to the instant action, PROVIDER has been damaged and was compelled to employ an attomey to represent PROVIDER on the declaratory judgment matter. Thus, PROVIDER has already incurred and will continue to incur attorney's fees and other expenses with regard to their defense in the instant action. As such, PROVIDER has been and will continue to be damaged in the sum that shall be determined at the trial or inquest ofthis matter. 5. In the event that the PROVIDER prevails in the instant action, the PROVIDER demands attomeys fees against the INSURER pursuant to the insurance contracts, the assignment of benef,rts, general obligations law, the common law, and pursuant to the Court of Appeals decision in US Underwrilers Ins. Co. v. City Club Hotel, LLC, er a/., 3 NY3d 593, 822 NE2d 777 (2004) and the decision in the Second Department, Farm Family Casualty Insurance Co. v. Habitat Revival, LLC 2012 NY Slip Op (2"d Dept. 2012). WHEREFORE, it is respectfully requested that a judgment be granted (l) dismissing the complaint herein as against the answering Defendant ACUPUNCTURE APPROACH, PC., with costs and reimbursements of this action; or, in the alternative, (2) to the answering Defendant ACUPUNCTURE APPROACH, PC in the amount of the sum of the claims submitted to Plaintiff by the answering Defendant; and in further, (3) together with the costs and disbursements; and (4) such other and furlher reliefthat this Court deems just and proper. Dated: Brooklyn, NY htly 27,?012 Gary Tsirelman, P.C. At t orney s for D efe ndanl ACUPLINCTURE APPROACH, PC 65 Jay Street, Fl 3 Brooklyn NY (718) 438-l By: I Selina CHIN! Daniel GRACE I kena GOLODKEYER _/btefan BELINFANTI Sara PANKOWSKI I Doug MACE

11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEMPER INDEPENDENCE INSURANCE COMPANY, Plaintiff, -against- DEMAND TO CIIANGE VEI\TIJE INorxNo.: /2012 ACUPUNCTURE APPROACH, PC, et al., Defendants. SIRS: PLEASE TAKE NOTICE, that pursuant to CPLR 51 I, defendant hereby demands that the place of trial of this action be changed from the COUNTY OF NEW YORK to the COIINTY OF KINGS, on the ground that the County originally designated by the plaintiff is not a proper County for venue of this action. Dated: htly 27,2012

12 SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF NEW YORK KEMPER INDEPENDENCE INSURANCE COMPANY, Plaintiff, INDEX No.: against- ACUPIINCTURE APPROACH, PC, et al., Defendants. A]\SWER with CROSS CLAIMS AND COUNTER CLAIMS and DEMAND TO CIIANGE VENUE Gary Tsirelman PC At t orney s for D efe ndant 65 Jay Street, 3'd Floor Brooklyn NY (718) Pursuant to 22 NYCRR , the undersigned,, an attorney duly admitted to practice in the courts ofnew York State, certilies that, upon information and beliefand reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Jttly 27,2012 Signature: Print RIJBIN, FIORELLA, & X'RIEDMAN, LLP 292 Madison Avenue, I l'o Floor New York, New York ET.AL.