FILED: NEW YORK COUNTY CLERK 02/05/ :47 PM INDEX NO /2016 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/05/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, INDEX NO.: /2016 Plaintiff(s), ANSWER TO AMENDED COMPLAINT WITH CROSS-CLAIM -against- AND COUNTER-CLAIM CAMELLA BROWN, ET AL., FILE NO.: 24,702. Defendant(s Defendant, ORION SUPPLIES, INC. by its attorneys, KOPELEVICH & FELDSHEROVA, P.C., Defendant" (hereinafter "Answering Defendant"), as and for its answer respectfully allege upon information and belief as follows: 1 Denies any knowledge and information sufficient to form a belief as to each and every allegation contained in the paragraphs of the complaint therein designated as 1-17, 19-28, and and refers all questions of law to this Honorable Court. 2 Denies each and every allegation contained in the paragraph of the complaint therein designated as 18 EXCEPT admit that Answering Defendant does business in the County of Kings, State of New York. 3 Denies any knowledge and information sufficient to form a belief as to each and every allegation contained in the paragraphs of the complaint therein designated as 29 and 41EXCEPT admit that Answering Defendant has submitted bills to Plaintiff seeking payment for services rendered to Co-Defendant CAMELLA BROWN. AS FOR THE FIRST, SEPARATE, AND DISTINCT Plaintiff's complaint fails to state a proper and valid cause of action 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 Venue is improper. AS FOR THE THIRD, SEPARATE, AND DISTINCT Forum non conveniens. 1 of 9

2 AS FOR THE FOURTH, SEPARATE, AND DISTINCT Plaintiff has failed to properly commence the instant action. AS FOR THE FIFTH, SEPARATE, AND DISTINCT Statutes of limitations have expired on the Plaintiff's action. AS FOR THE SIXTH, SEPARATE, AND DISTINCT Plaintiff lacks legal capacity to sue. AS FOR THE SEVENTH, SEPARATE, AND DISTINCT Plaintiff lacks standing to bring this cause of action against the Answering Defendant because the Answering Defendant owes no duty to Plaintiff. AS FOR THE EIGHTH, SEPARATE, AND DISTINCT Plaintiff is barred from disclaiming liability under the doctrine of laches and equitable estoppel. AS FOR THE NINTH, SEPARATE, AND DISTINCT There are other actions pending for the same causes of action, therefore, this case is barred. AS FOR THE TENTH, SEPARATE, AND DISTINCT Necessary parties have not been included as parties to this action. AS FOR THE ELEVENTH, SEPARATE, AND DISTINCT The alleged causes of action are barred by any prior payment, release or settlement. AS F OR THE TWELFTH, SEPARATE, AND DISTINCT Plai.ntiff will be unjustly enriched. AS FOR THE THIRTEENTH, SEPARATE, AND DISTINCT The Answering Defendant did not deceive or cause to deceive the Plaintiff. AS FOR THE FOURTEENTH, SEPARATE, AND DISTINCT 2 of 9

3 Plaintiff's damages if any are the result of its own fraudulent practices. AS FOR THE FIFTEENTH, SEPARATE, AND DISTINCT That in the event any judgment or verdict is rendered in favor of Plaintiff, the Answering Defendant is entitled to have such judgment or verdict reduced by the amounts of any collateral payments. AS FOR THE SIXTEENTH, SEPARATE, AND DISTINCT Upon information and belief, Plaintiff is barred from making this claim because of the failure of Plaintiff to comply with all the insurance laws, rules and regulations. AS FOR THE SEVENTEENTH, SEPARATE, AND DISTINCT Plaintiff failed to issue timely denials of Answering Defendant's claims. AS FOR THE EIGHTEENTH, SEPARATE, AND DISTINCT All bills as submitted to Plaintiff by the Answering Defendant were not fraudulent. AS FOR THE NINETEENTH, SEPARATE, AND DISTINCT The Answering Defendant did not breach the provisions of the insurance policy issued by Plaintiff. AS FOR THE TWENTIETH, SEPARATE, AND DISTINCT The Answering Defendant is properly incorporated and operates pursuant to the applicable laws and regulations of the State of New York. AS AND FOR THE TWENTY-FIRST, SEPARATE, AND DISTINCT No misrepresentation was made. AS FOR THE TWENTY-SECOND, SEPARATE, AND DISTINCT Any misrepresentation was not material. AS FOR THE TWENTY-THIRD SEPARATE, AND DISTINCT Answering Defendant is an innocent third party 3 of 9

4 AS FOR THE TWENTY-FOURTH SEPARATE, AND DISTINCT Answering Defendant's assignor is an innocent third party. AS FOR THE TWENTY-FIFTH SEPARATE, AND DISTINCT All services provided by Answering Defendant were causally related to an insured incident. AS FOR THE TWENTY-SIXTH SEPARATE, AND DISTINCT Any denials issued by Plaintiff failed to preserve relevant defenses to coverage. AS FOR THE TWENTY-SEVENTH, SEPARATE, AND DISTINCT Plaintiff failed to timely and properly deny Answering Defendant's claims. AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANT CAMELLA BROWN TO WHICH AN ANSWER IS DEMANDED: Defendant-Plaintiff, Answering Defendant on the Cross-Claim alleges: 1. Upon information and belief, Answering Defendant provided necessary services to CO- DEFENDANT CAMELLA BROWN for injuries allegedly suffered as a result of the accident that occurred on January 8, Upon information and belief CO-DEFENDANT CAMELLA BROWN duly assigned her no-fault benefits under the insurance policy issued by PLAINTIFF to the Answering Defendant for the necessary services provided to CO-DEFENDANT CAMELLA BROWN. 3. That if there is a judgment/verdict for PLAINTIFF by reasons of the matters alleged in the PLAINTIFF'S complaint herein, such judgment/verdict will render the assignment of the no-fault benefits null and void and that the Answering Defendant shall be entitled to a judgment in the amount of the sum of the claims submitted to Plaintiff by the Answering Defendant pursuant to the assignment of no-fault benefits by CO-DEFENDANT CAMELLA BROWN. 4 of 9

5 AS AND FOR A FIRST COUNTER-CLAIM: Defendant-Plaintiff, Answering Defendant on the Counter-Claim allege: 1. Plaintiff-Defendant on the counter-claim, NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY (hereinafter, "INSURER") issued insurance policies to its insured, (hereinafter, "POLICYHOLDER" "POLICYHOLDER"), requiring INSURER to defend or/and indemnify the POLICYHOLDER and other eligible injured parties under the policy in any lawsuit involving said insurance contract including in the action brought by INSURER. 2. On or about October 27, 2016 INSURER commenced the instant declaratory judgment action in Supreme Court of the State of New York, COUNTY OF NEW YORK, against Answering Defendant, seeking a declaration that Answering Defendant is not entitled to reimbursement for medical services billed to INSURER. The action of the INSURER is premised upon the allegation that the assignor CAMELLA BROWN, inter alia, made material misrepresentations. 3. Due to the instant action, the Answering Defendant has been damaged and compelled to employ an attorney for representation regarding the instant matter. As a result of this action, the Answering Defendant has already incurred, and will continue to incur, attorney's fees and other expenses with regard to its defense in the instant action. As such, the Answering Defendant has been and will continue to be damaged in the sum that shall be determined at the trial or on inquest of this matter. 4. In the event that Answering Defendant prevails in the instant action, Answering Defendant demands attorney's fees against INSURER pursuant to the insurance contract, pursuant to the Court of Appeals decision in US Underwriters Ins. Co. v. City Club Hotel, LLC, et al- 3 NY3d 593, 822 NE2d 777 (2004), and pursuant to the amended attorney's fees provisions within the No-Fault regulations. Said amendments are effective for suits filed an or after February 4, 2015 and allow for attorney's to recover hourly fees for court proceedings which involve a policy issue, 11 NYCRR 65-4,6(c). 5 of 9

6 WHEREFORE, it is respectfully requested that a judgment be granted (1) dismissing the amended complaint herein as against Answering Defendant, by its attorneys, KOPELEVICH & FELDSHEROVA, P.C., with costs and reimbursements of this action; or, in the alternative, (2); Defendant-Plaintiff on the Counter-Claim Answering Defendant demands judgment against Plaintiff- Defendant on the Counter-Claim, NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, in the amount that shall be determined at a trial or inquest of the instant matter, and attorneys fees pursuant to (a) Insurance Law 5106(a), (b) the applicable contract provisions, (c) the Court of Appeals decision in US Underwriters Ins. Co. v. City Club Hotel, LLC, et al., 3 NY3d 593, 822 NE2d 777 (2004), and (d) 11 NYCRR (c) including the recently amended provisions, together with the costs and disbursements; and (3) if there is a judgment/verdict for PLAINTIFF by reasons of the matters alleged in the PLAINTIFF'S amended complaint herein, Defendant-Plaintiff on the Cross-Claim Answering Defendant demands judgment against CO-DEFENDANT CAMELLA BROWN in the amount of the sum of the claims submitted to Plaintiff by the Answering Defendant pursuant to the assignment of no-fault benefits; and (4) such other and further relief that this Court deems just and proper. DATED: BROOKLYN, NEW YORK FEBRUARY 5, 2018 KOPELEVICH & FELDSHEROVA, P.C. Attorneysfor Defendant ORION SERVICES, INC th Street, suite B439 Brooklyn, New YorM I i Mikhail KOPELEVICH Galina FELDSHEROVA avid LANDFAIR 6 of 9

7 CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF KINGS.,----- NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY, Index No.: /2016 VERIFICATION Plaintiff(s), File No: 24,702 -against- CAMELLA BROWN, ET AL., Defendant(s). I, 4 ~~~@<~, being duly sworn, depose and say under the penalty of perjury: 1. I am the Owner/shareholder/corporate officer of ORION SUPPLIES, INC., and am personally familiar with the facts and circumstances of this case. 2. I have read the annexed Answer with Cross Claim and Counter Claim and know the contents thereof. These responses are true to my knowledge, except for those matters therein stated upon information and belief; as to those matters, I believe them to be true. The sources of my knowledge are the documents on file for this case and my personal involvement with this case. [SIGN NAME] [PRINT NAME] ) O / 6 The above affiant, whose identity is personally known to me based on reliable photographic identification, personally came before me at a location within the country in which I am qualified as a public officer and, after being duly sworn, testified that the contents of the within verification are true. In witness whereof, I have hereunto affixed my hand and seal on this da of 20 8 MlKHAIL KOPELEVICH Notary Public, State of New York No. 02KO Notary Public, 8 te of New York Qualified in chuen(1 Coon CornfYIlsslon Expires 1!/30/20 z j 7 of 9

8 TO: GIALLEONARDO, MCDONALD & TURCHETTI Attorneys for Plaintiff One Whitehall Street, 13* 13 Floor New York, New York (212) CAMELLA BROWN Defendant on the Cross Claim 40* 37 East 40 Street Brooldyn, New York of 9

9 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ÑAfÏOÑŸ/IDÈ Pli PElitŸINÍ UÄSUXÜT INSURANCE COMPANY, Plaintiff, INDEXNo.: /2016 -against- CAMELLA BROWN, et al. Defendant(s). ANSWER TO AMENDED COMPLAINT WITH CROSS CLAIM and COUNTER CLAIM KOPELEVICH & FELDSHEROVA, P.C. Attorneys for Defendant SUPPLIES, INC th Street, Suite 8439 Brooklyn, NY FILENO.:24,702 Pursuant to 22 NYCRR , the undersigned, an attorney duly admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: FEBRUARY 5, 2018 Signature: /i j Print Signer's Name: TO: GIALLEONARDO, MCDONALD & TURCHETTI Attorneys for Plaintiff One Whitehall Street, 13th FlOOr New York, New York (212) CAMALLA BROWN Defendant on the Cross Claim 40th 37 East street Brooklyn, New York of 9