FILED: NEW YORK COUNTY CLERK 05/01/2015 05:07 PM INDEX NO. 158289/2014 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/01/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK REPWEST INSURANCE COMPANY, - against - Plaintiff, KINGS COUNTY PHYSICIANS GROUP, FIRST BROOKLYN OSTEOPATHIC, P.C., LOYAL ACUPUNCTURE, P.C., ADVANTAGE RADIOLOGY, P.C., ILONA ROMANOVSKAYA, and ALEX LIS, : Index No.: 158289/2014 : CPLR 3215(G)(4)(H) : NOTICE OF SERVICE Defendants. x Pursuant to CPLR 3215 (g)(4)(ii), the enclosed constitutes notice that service has been, made pursuant to BCL 306, or LLCL 303. Dated: New York, New York April 30, 2015 BRYAN CAVE LLP By: ( J0J.4&(1`,G Cathy homas 1290 Avenue o the Americas New York, New York 10104 (212) 541-2000 Attorneys for Plaintiff Repwest Insurance Company TO: Kings County Physicians Group 1762 McDonald Avenue Brooklyn, NY 11230 1859767.1\0346918 1
First Brooklyn Osteopathic, PC 1762 McDonald Avenue Brooklyn, NY 11230 Loyal Acupuncture, PC 1762 McDonald Avenue Brooklyn, NY 11230 Advantage Radiology 3049 Ocean Parkway Brooklyn, NY 11235 1859767.1\0346918 2
INDEX NO. 158289/2014 [FILED: NEW YORK COUNTY CLERK 08/22/2014 12 : 42 PM) NYSCEF DOC. Np:,], RECEIVED NYSCEF: 08/22/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK REPWST INSURANCE COMPANY, -against- KINGS COUNTY PHYSICIANS GROUP, FIRST BROOKLYN OSTEOPATHIC, P.C., LOYAL ACUPUNCTURE, P.C., ADVANTAGE RADIOLOGY, P.C., ILONA ROMANOVSKAYA, and ALEX LIS, Index No.: Date Purchased: SUMMONS Plaintiff designates. New York County as the place of trial Venue is based on CPLR 509 Defendants. x To the Above-Named Defendants: YOU ARE HEREBY SUMMONED to answer the Complaint in this 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 undersigned attorneys for Plaintiff within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint in this action. Dated: New York, New York August 21, 2014 BRYAN CAVE LLP By: &C)1/4 11113.-10 Jessica hweicher Cathy M. omas 1290 Avenue of the Americas New York, New York 10104 (212) 541-2000. Attorneys for PlainhffRepwest Insurance Company 1811644.3\C018858\0346918
DEFENDANTS' ADDRESSES: Ilona Romanovskaya 1215 Avenue M, Apt. 6B Brooklyn, New York 11230 Alex Lis 1215 Avenue M, Apt. 6B Brooklyn, New York 11230 Kings County Physicians Group 1762 McDonald Avenue Brooklyn, NY 11230 First Brooklyn Osteopathic, PC 1762 McDonald Avenue Brooklyn, NY 11230 Loyal Acupuncture, PC 1762 McDonald Avenue Brooklyn, NY 11230 Advantage Radiology, P.C. 3049 Ocean Parkway Brooklyn, NY 11235 1811644.3\C018858\0346918
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x REPWEST INSURANCE COMPANY, Plaintiff, Index No.: : VERIFIED COMPLAINT against - KINGS COUNTY PHYSICIANS GROUP, FIRST BROOKLYN OSTEOPATHIC, P.C., LOYAL ACUPUNCTURE, P.C., ADVANTAGE RADIOLOGY, P.C., ILONA ROMANOVSKAYA, and ALEX LIS, Defendants. x Repwest Insurance Company ("Repwest"), by its counsel Bryan Cave LLP ("Bryan Cave"), as and for its verified complaint to obtain a judgment declaring the rights and legal relations of the parties to this action, states as follows: I. INTRODUCTION 1. This is an action for a declaratory judgment pursuant to CPLR 3001 and 3017(b), defining the rights, duties, obligations and legal relationships between Repwest and the Defendants. 2. This action is intended to prevent the payment of no-fault insurance claims due to a breach of a condition precedent to coverage, to prevent the payment of false claims based on unnecessary and excessive treatment, and to prevent the parties submitting such claims from being unjustly enriched. 3. Repwest has received bills from several medical providers for.medical treatment allegedly rendered as a result of a minor collision involving a Repwest insured U-Haul vehicle (the "U-Haul Vehicle"), which occurred on November 21, 2012 (the "Incident"). 1811644.3\6618858\0346918
4. Defendants Ilona Romanovskaya ("Romanovskaya") and Alex Lis ("Lis") (collectively, the "Participant Defendants") have submitted claims to Repwest for no-fault insurance benefits. Thus, as the Participant Defendants have received and/or are continuing to receive medical treatment, the total potential exposure to Repwest for no-fault benefits under the applicable law is $50,000.00 for each Participant Defendant, for a total of $100,000.00. II. JURISDICTION 5. Venue is designated as New York County pursuant to CPLR 509. III. THE PARTIES 6. Plaintiff, Repwest, is a corporation organized and existing under the laws of the State of Arizona with its principal place of business at 2721 North Central Avenue, Phoenix, Arizona 85004. Participant Defendants 7," Upon information and belief, Romanovskaya is an individual residing in the City and State of New York. 8. Upon information and belief, Lis an individual residing in the City and State of New York. Provider Defendants 9. Upon information and belief, defendant Kings County Physicians Group ("Kings County') is a provider of medical services, with a principal place of business in the City and State of New York. 10. Upon information and belief, defendant First Brooklyn Osteopathic, P.C. ("First Brooklyn") is a provider of medical services, with its principal place of business in the City and State of New York. 1811644.3\C018858\0346918
11. Upon information and belief, defendant Loyal Acupuncture Services, P.C. ("Loyal Acupuncture") is a provider of acupuncture services, with its principal place of business in, the City and State of New York. 12. Upon information and belief, defendant Advantage Radiology, P.C. ("Advantage Radiology") is a provider of medical services, with its principal place of business in the City and State of New York.. FACTS The Incident 13. On November 15, 2012, Lis rented the U-Haul Vehicle from a U-Haul facility located at 394 4 th Avenue, Brooklyn, NY. At that time, he was given documentation explaining the liability protection and no-fault benefits to which he was entitled pursuant to the rental contract. 14. According to the applicable police report (the "Police Report"), the Incident occurred on November 21, 2012 at the intersection of 2nd Avenue and East Houston Street, in New York, New York. 15. - According to the Police Report, the U-Haul Vehicle was struck by an unidentified yellow taxi while making a left turn. Romanovskaya was allegedly a passenger in the U-Haul Vehicle. 16. The circumstances of the Incident and subsequent treatment indicated that further investigation of the claim was warranted. Among the factors that render this claim suspicious and warranting investigation are: The Incident was low impact. b. The Incident caused minimal damage to the U-Haul Vehicle. 181164.4.3\C018858\0346918 3
c. The adverse vehicle, an unidentified yellow taxi, left the scene of the accident following the impact. d. Despite the minor impact of the Incident, Repwest received excessive billing for frequent treatment of Romanovskaya and Lis by several medical providers, most of which are located at the same address. 17. The above factors indicated a possibility that the loss was staged and/or intentionally caused and that the treatment allegedly rendered was not actually rendered and/or not rendered for injuries sustained as a result of the Incident, all of which are considered noncovered events under the NY no-fault regulations. The Claims and Verification Process 18. On or around December 31; 2012, Repwest received Applications for Motor Vehicle No-Fault Benefits forms ("NF-2s"), signed by Romanovskaya and Lis. The NF-2s sought benefits pursuant to New York's no-fault law, Ins. Law 5201 et. seq. 19. Pursuant to its rights under 11 NYCRR 65-1.1, 65-2.4, 65-3.5, Repwest attempted to investigate the facts and circumstances surrounding the Incident and subsequent treatment by requesting that the Participant Defendants submit to independent medical examinations ("IMEs") and/or examinations under oath ("EUOs"). Participant Defendants 20. The Participant Defendants appeared for EUOs at the offices of Bryan Cave in Manhattan, New York. 21. Upon information and belief, the Participant Defendants followed a course of treatment that was similar, if not identical, to one another. 4 1811644.3\C018858\0346918
22. Upon information and belief, the Participant Defendants were unable to give details regarding a diagnosis or prognosis for their alleged injuries. 23... Upon information and belief, the Participant Defendants were not injured as a. result of the Incident. 24. Upon information and belief, the Participant Defendants were referred to their attorneys by the clinic at which they both received treatment. Provider Defendants 25. Subsequent to the EUOs of the Participant Defendants, and in order to further investigate the suspicious testimony given by the Participant Defendants, Repwest requested EUOs of the Provider Defendants herein, Kings County Physicians Group, First Brooklyn Osteopathic, P.C., Loyal Acupuncture Services, P.C., and Advantage Radiology, P.C. (co4ctively, the "Provider Defendants"). All of the Provider Defendants were properly noticed to appear for EUOs and failed to attend their respective EUOs._ 26. As none of the Provider Defendants appeared for their initial EUOs, the EUOs were rescheduled. 27. Again, none of the Provider Defendants appeared for their rescheduled EUOs. 28. Pursuant to 11 NYCRR 65-1.1, 65-2.4, 65-3.5, the Provider Defendants' failure to appear for EUOs on at least two separate occasions was a violatfon of the NY no-fault regulations and a violation of condition precedent to coverage for all no-fault claims submitted by the Provider Defendants with regard to the treatment allegedly provided to the Participant Defendants. 1811644.3\C018858\0346918 5
V. AS AND FOR A FIRST CAUSE OF ACTION (Declaratory and Injunctive Relief/Failure to Appear for Examinations Under Oath) 29. Repwest repeats, reiterates and re-alleges each and every allegation contained in paragraphs 1 through 28 as if set forth fully herein. 30. Pursuant to 11 NYCRR 65-1.1, 65-2.4, 65-3.5, Repwest noticed the Provider Defefidants to appear for EUOs.. ' 31. Repwest had a reasonable basis to request the EUOs based on the various facts and factors described above which rendered this claim suspicious, and warranting further. investigation. 32. Repwest properly notified the Provider Defendants of their duty to appear for an EUO. 33. The Provider Defen. ants willfully. obstructed Repwest's investigation of the claim and failed to cooperate with such investigation, in violation of the rental contract and applicable regulations. 34. The failure of the Provider Defendants to appear for EUOs was a breach of a conditim'i precedent to coverage. 35. The Provider Defendants willfully breached the duty they owed to Repwest, as well as under New York State Law, by failing to cooperate with Repwest and by failing to appear for their respective EUOs. 36. As a result of the aforesaid conduct, Repwest is entitled to a declaration that it has no duty to provide coverage for no-fault benefits or uninsured motorist benefits on claims made by or on behalf of the Participant Defendant arising out of the Incident, that all arbitration proceedings and lawsuits brought by the Provider Defendants to recover payment for bills for treatment allegedly arising out of the Incident are permanently stayed, that the Provider.1811643\6018858\0346918 6
Defendants are permanently enjoined from bringing any further such lawsuits or arbitration proceedings, and that it is not obligated to defend any pending actions, or any actions that may later be brought, arising out of or relating to the Incident. 37. Repwest will suffer irreparable harm if the requested relief is not granted, and has no adequate remedy at law. VI. AS AND FORA SECOND CAUSE OF ACTION (Declaratory and Injunctive Relief/Unjust Enrichment) 38. Repwest repeats, reiterates and re-alleges each and every allegation contained in paragraphs 1 through 37 as if set forth fully herein.. -39. Upon information and belief, the Participant Defendants obtained unnecessary and excessive medical treatment from the Provider Defendants subsequent to the Incident. 40. The Provider Defendants have submitted assigned no-fault claims to Repwest which have either been denied by Repwest or delayed pending receipt of additional verification and are therefore Outstanding Claims. 41. The Provider Defendants have not withdrawn the Outstanding Claims and on some claims, upon information. and belief, will institute suit or arbitration. However, when the contract of insurance has been breached there is no coverage. 42. Upon information and belief, the total amount of claims may continue to increase. 43. As a result of the aforesaid conduct, Repwest is entitled to a declaration that it has no duty to provide coverage for no-fault benefits or uninsured motorist benefits on claims made by or on behalf of the Participant Defendant arising out of the Incident, that all arbitration proceedings and lawsuits brought by the Provider Defendants to recover payment for bills for treatment allegedly arising out of the Incident are permanently stayed, that the Provider Defendants are permanently enjoined from bringing any further such lawsuits and arbitration 1811644.3\C018858\0346918 7
proceedings, and that it is not obligated to defend any pending actions or any actions that may arise, relating to the Incident. 44. Repwest will suffer irreparable harm if the requested relief is not granted, and has adequate remedy at law. WHEREFORE, Repwest respectfully requests, (i) As against the Participant Defendant, a declaration that: a) Repwest has no duty to provide no-fault coverage or no fault benefits to the Participant Defendants for any claims submitted by_ said individual and/or submitted by the Provider Defendants on his behalf, for alleged treatment and/or services following the loss enumerated herein; and Repwest has no duty to defend or indemnify any of the Participant Defendants in any action, claim, arbitration or other proceeding brought in connection with the Incident. (ii) As against the Provider Defendants, a declaration that: Repwest has no duty to provide coverage for any claims for no-fault benefits submitted by the Provider Defendants for any and all Outstanding Claims, and/or future potential claims submitted as a result of the Incident. (iii) As against all Defendants, a judgment declaring that: a) All arbitrations and lawsuits brought by Defendants relating to no-fault claims arising out of the Incident are permanently stayed. b) The Defendants are permanently enjoined from commencing any new lawsuit or arbitrations against Repwest arising out of the Incident. (iv) Together with such other and further relief as this Court deems just and proper under the circumstances. [SIGNATURE BLOCK ON NEXT PAGE] 1811644.3\C018858\0346918 8
Dated: New York, New York August 21, 2014 BRYAN CAVE LLP By: Jessica Fisch v *cher Cathy M. Thomas 1290 Avenue of the Americas New York, NY 10104-3300 (212) 541-2000 Attorneys for Plaintiff'Repwest Insurance Company 1811644.3\C018858\0346918 9
ATTORNEY VERIFICATION I am an attorney admitted to practice in the Courts of New York State. I am associated with the firm Bryan Cave, LLP, attorneys for the Plaintiff REPWEST INSURANCE COMPANY ("Plaintiff'). I have read the annexed Verified Complaint, know the contents thereof, and the same are true to my knowledge, except those matters that are stated to be alleged on information and belief, and as to those matters, I believe them to be true. My belief as to those matters not stated upon personal knowledge is based upon information and investigation contained in the file maintained by my office. The reason that I make this affirmation instead of the Plaintiff is that the Plaintiff does not maintain an office or reside in New York County where our offices are maintained. I affirm that the foregoing statements are true under penalties of perjury. Dated: New York, New York August 21, 2014 By: Cathy 'Thomas 18116443 \C0.113R5B\11:34691B 10