FILED: NEW YORK COUNTY CLERK 02/28/ :05 PM INDEX NO /2016 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/28/2017

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1 LA RS:rs SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x LIBERTY MUTUAL INSURANCE COMPANY and THE FIRST LIBERTY INSURANCE CORPORATION, - Against - CATHERINE WASSON, Plaintiffs, - and - " Individual Defendant", AM CHIROPRACTIC P.C. ACCESS PHYSICAL THERAPY & WELLNESS DIAGNOSTIC MEDICINE P.C. DR. ELIEZER L. OFFENBACKER M.D. PLLC ISLAND AMBULATORY SURGERY CENTER, L.L.C. LR MEDICAL PLLC LONGEVITY MEDICAL SUPPLY INC. MINGMEN ACUPUNTURE SERVICE P.C. PAIN AND NEUROPATHY CENTER RELIEF MEDICAL P.C. 21ST CENTURY PHARMACY INC., AFFIRMATION IN SUPPORT OF MOTION TO RENEW AND REARGUE FOR SUMMARY AND DEFAULT JUDGMENT Index No. : /2016 "Medical Provider Defendants", Collectively, The Defendants x Robert J. Spence III, 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 & 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. 1 of 11

2 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 affirmation is respectfully submitted in support of the within application to renew the motion for default and summary judgment of the Plaintiff and reargue the motion to dismiss of Defendant Longevity 4. On November 21, 2016 The Ryback Firm filed a motion to dismiss on behalf of one of the Medical Provider Defendants, LONGEVITY MEDICAL SUPPLY, INC. returnable December 19, See NYSEF Doc. #5. 5. On December 14, 2016 a stipulation was E-filed adjourning the Ryback Firm s motion to dismiss to January 20, See NYSEF Doc. # On January 20, 2017 Liberty Mutual filed a Notice of Cross-Motion In Opposition to Ryback s Motion to Dismiss and for a Default Judgment Against the Non-Answering Defendants returnable February 10, See NYSEF Doc. # Additionally, on January 20, 2017 a stipulation was E-filed adjourning the Ryback Firm s motion to dismiss to February 20, 2017 to coincide with the Notice of Cross-Motion In Opposition to Dismiss and for a Default Judgment Against the Non-Answering Defendants returnable February 10, See NYSEF Doc. #39. See Exhibit J. 8. On January 23, 2017 Hon. Gerald Lebovitz issued a decision and Order granting Longevity Medical Supply Inc. s motion to dismiss, without opposition. See NYSEF Doc. #40. See Exhibit K. 9. It is respectfully submitted that the Notice of Cross-Motion In Opposition to Dismiss and for a Default Judgment Against the Non-Answering Defendants filed on January 20, 2017 was the opposition to Defendant Longevity Medical Supply Inc. s motion. 2 of 11

3 10. Therefore, it is requested that this court Renew Plaintiff s Notice of Cross-Motion In Opposition to Ryback s Motion to Dismiss and for a Default Judgment Against the Non- Answering Defendants now returnable March 24, 2017 and Reargue The Ryback Firm s Motion to Dismiss as to Medical Provider Defendants, Longevity Medical Supply Inc. 11. Although Plaintiff is unsure specifically what occurred here, clearly an error did occur. Plaintiffs request that the court reconsider this motion on the merits due to possible Law Office Failure in filing the papers, which can and it is respectfully submitted, should be excused pursuant to CPLR As stated in Theatre Row Phase II Assoc. v H & I, Inc., 27 AD3d 216, 217 [1st Dept 2006], an inadvertent error can constitute law office failure. This court then also held that the strong policy is to have motions decided on the merits. Plaintiffs are Entitled to a Default Judgment Against the Non-Answering Defendants Procedural History: 4. Plaintiffs filed a Summons and Complaint against the Medical Provider Defendants and Individual Defendants 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. 5. Plaintiffs served the Defendants with the Summons and Complaint. A copy of the affidavits of service for service of the Summons and Complaint upon the Defendants are annexed hereto as Exhibit B. 6. Pursuant to CPLR 3215 (g)(4)(i) additional service of the Summons and Complaint was made by first class mail upon all Defendants 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 are annexed hereto as Exhibit C. 3 of 11

4 7. It should be noted that, as of 30 days from the filing of this motion, Individual Defendant Catherine Wasson, was not enrolled in active military service as determined by a search of the Department of Defense military database. An affidavit of SIU attorney Philip Dillon, who conducted an investigation of the Individual Defendant, CATHERINE WASSON, military service background which showed that the Individual Defendant is not enrolled as active duty military service including the reports as found in the data banks of the Department of Defense Manpower Data Center are attached as Exhibit D. 8. On November 8, 2016, Medical Provider Defendants ACCESS PHYSICAL THERAPY & WELLNESS, INC., submitted an Answer to Plaintiff s Complaint. On November 9, 2016, Medical Provider Defendant ISLAND AMBULATORY SURGERY CENTER, L.L.C. submitted an Answer to Plaintiff s Complaint. On December 9, 2016, Individual Defendant, CATHERINE WASSON served an answer. The Defendants have E-filed these answers. Copies of all Defendants Answers and Plaintiff s Reply to Counterclaim are annexed hereto as Exhibit E 9. The following Defendants have failed to answer the Summons and Complaint: I. AM CHIROPRACTIC P.C. II. DIAGNOSTIC MEDICINE P.C. III. DR. ELIEZER L. OFFENBACKER M.D. PLLC IV. ISLAND AMBULATORY SURGERY CENTER, L.L.C. V. LR MEDICAL PLLC VI. MINGMEN ACUPUNTURE SERVICE P.C. VII. PAIN AND NEUROPATHY CENTER VIII. RELIEF MEDICAL P.C. IX. 21ST CENTURY PHARMACY INC. 10. Plaintiffs request the Court to issue a Default Judgment against the Non-Answering Defendants for failure to timely Answer the Complaint. 4 of 11

5 Relevant Facts: 11. This action arises out of false claims for no-fault reimbursement stemming from a motor vehicle accident involving the Individual Defendant, Catherine Wasson, on June 2, 2015 (hereinafter referred to as the occurrence or the accident ). 12. The policy ( the policy ) in question was issued to Keith Stultz under policy number A , effective August 30, 2014 through August 30, 2015 with limits of no-fault medical bill coverage of $50,000 per person. 13. The insured vehicle was involved in an accident on June 2, 2015, and insured Keith Shultz was driving the vehicle at the time of the accident. 13. The accident occurred on Avenue T near the intersection with Flatbush Avenue in Brooklyn, New York. According to the police report, the insured, Keith Stultz, stated that he was turning onto Flatbush westbound, he did not hit the pedestrian and that she just put her hands on the hood. The pedestrian stated she was walking on Avenue T when the vehicle driven by the insured hit her and she went over the hood of the car and fell off. 14. Catherine Wasson was not treated for any injury at the scene, made no complaints of injuries to the police, and was not taken to the Emergency Room. She walked home following the accident. 15. Catherine Wasson submitted a claim alleging she was struck at the time of the accident and sought medical treatment for her alleged injuries from the Medical Provider Defendants. 16. The Medical Provider Defendants then submitted bills on assignment from the Individual Defendants to the Plaintiffs seeking No-Fault and bodily injury reimbursement. 17. The following Medical Provider Defendants submitted bills for Catherine Wasson: 5 of 11

6 All Billing for Catherine Wasson RELIEF MEDICAL PC $1, AM CHIROPRACTIC PC $ ACCESS PT &WELLNESS MILFORD $11,475 DR ELIEZER L OFFENBACKER $ LONGETIVITY MEDICAL SUPPLY INC $ ST CENURY PHARMACY INC $1,111 DIAGNOSTIC MEDICINE PC $1, MINGMEN ACUPUNTURE SERVICE PC $430 PAIN AND NEUROPTATHY CENTER $375 LR MEDICAL PLLC $ ISLAND AMBULATORY SURGERY CTR $1, TOTAL $20, 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 providers to conduct reasonable investigation and require Examinations under Oath ( EUO )of the parties to determine the legitimacy of the claims. 23. Catherine Wasson wrote on her No-Fault application that her right shin and back hurt. She did not claim that she lost any time from work. 23. Following the initial submission of the bills by the Medical Provider Defendants, the Plaintiffs requested an EUO of the Individual Defendant in order to clarify the facts of the loss and due to suspicious loss facts. On October 6, 2015, Catherine Wasson appeared for her scheduled EUO. 24. Catherine Wasson provided testimony (Annexed hereto as Exhibit F ) stating that she was struck on the left shin, which contradicts the No-Fault application. 6 of 11

7 24. Plaintiffs timely denied all bills submitted by the Medical Provider Defendants as assignee of Catherine Wasson based on the misrepresentation, by the Individual Defendant Catherine Wasson, that she was struck by the Liberty Mutual insured vehicle. Annexed hereto as Exhibit G are a copy of the denials. The Affidavit of the Claims Department Team Manager regarding the investigation is attached hereto as Exhibit F. 29. Moreover, Plaintiffs timely denied all bills submitted by the Medical Provider Defendants as assignee of Catherine Wasson due to the misrepresentation that she was struck by the Liberty Mutual insured vehicle. 30. Based on the facts and circumstances of the accident, Examination under Oath testimony, and the investigation conducted by Liberty Mutual, Plaintiffs timely denied all bills submitted by the Medical Provider Defendants based on the fact that the pedestrian was not struck by the Liberty Mutual insured vehicle. 31. As is reflected in the chart above, Individual Defendant nevertheless received treatment from a number of medical specialists. 32. 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 providers to conduct reasonable investigation and require Examinations under Oath of the parties to determine the legitimacy of the claims. An Affidavit of the Liberty Mutual investigator who carried out the investigation is annexed hereto as Exhibit H. 33. Following the accident, the Individual Defendant sought medical treatment from the Medical Provider Defendants who submitted bills on assignment from the Individual Defendants seeking No-Fault reimbursement. 7 of 11

8 34. Each bill submitted by the Medical Provider Defendants for reimbursement to Liberty Mutual is governed by New York State Regulation 68A, 11 NYCRR , which states that a provider such as Liberty Mutual may require any insured making a claim under the policy to provide information regarding the legitimacy of the claim in a reasonable manner and that 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 claim under oath; b) as may reasonably be required 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 provide any other pertinent information that may assist the Company in determining the amount due and payable. 35. Individual Defendant Catherine Wasson falsely stated that she was struck by the Liberty Mutual insured vehicle with the intent to induce Liberty Mutual to ultimately pay benefits to the Medical Provider Defendants. 36. Liberty Mutual is not obligated to provide reimbursement to Medical Provider Defendants for medical services purportedly rendered to the Individual Defendant arising from the subject loss and billed to Liberty Mutual pursuant to the no-fault laws and regulations and the Insurance Law of the State of New York, based upon fact misrepresentation. 37. 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 materially misrepresented the facts following the accident with the intent to induce Liberty Mutual to ultimately pay benefits to the Medical Provider Defendants; (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. 8 of 11

9 38. Plaintiffs are therefore entitled to a Default Judgment against the Medical Provider 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. Narang, 73 A.D.3d 1030, 903 N.Y.S.2d 424 (2 nd Dept., 2010). 39. 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 constituting its claim, 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. 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. See Exhibits B and C. Conclusion: 40. Both Defendants LONGEVITY MEDICAL SUPPLY, INC. and ACCESS PHYSICAL THERAPY & WELLNESS, separate motions to dismiss should be denied based on the information submitted herein. Khodadadi v. Clarendon Nat. Ins. Co., Slip Copy, 2012 WL (Table), N.Y. Sup. App. Term, 2012, October 11, Rather summary judgment should be granted to Plaintiff. It is certainly well settled that the proponent of a motion for summary judgment must make a prima facie showing of 9 of 11

10 entitlement to judgment as a matter of law. Plaintiffs have indeed met that burden here by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth CenturyFox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept.1988). 41. The named non-answering Medical Provider Defendants have failed to timely answer the allegations contained in the properly served pleadings. 42. 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. 43. 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. 44. Therefore, Plaintiffs are entitled under CPLR 3215 to a default judgment on the merits in all respects. 45. In addition to demonstrating the default of the Individual, Policyholder, and Medical Provider Defendants, Plaintiffs have shown, through submission of the investigator s affidavit, and the EUO transcripts, that they are entitled to a Default Judgment against the Non-Answering Defendants declaring that Plaintiffs denials of these Defendant s claims and bills are valid. See Utica First Ins. Co. v Santagata, 66 AD3d 876 (2 nd Dept. 2009). 46. Therefore, 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 plaintiff's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., of 11

11 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). The evidence includes EUO transcripts as well as the affirmed affidavit of Plaintiffs SIU investigator. See CPLR 3212(b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985). This evidence is overwhelming and Plaintiffs have met its burden of proof. 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 Defendants LONGEVITY MEDICAL SUPPLY, INC. and ACCESS PHYSICAL THERAPY & WELLNESS, separate motions to dismiss should be denied based on the information submitted herein, and for such other and proper relief as to this court deems just Dated: White Plains, New York February 23, 2017 ROBERT J SPENCE III, Esq. Law Office Of BURKE, CONWAY & DILLON Attorneys for Plaintiffs LIBERTY MUTUAL INSURANCE COMPANY AND LM GENERAL INSURANCE COMPANY 10 Bank Street, Suite 1200 White Plains, NY of 11