Preview
FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
..ÛÛ_ _NT OF NEW ORK
HEREFORD INSURANCE COMPANY
PLAINTIFF,
-AGAINST-
INDEx No.: 657719/2019
ALL CITY FAMILY HEALTHCARE CENTER, INC., ARD RX
INC., ATLAS PT, P.C., AVENUE OF PHYSICAL THERAPY &
CHIROPRACTIC BACK PAIN VERIFIED ANSWER
CARE, CHIROPRACTIC, PC,
BACK TO BALANCE BROOKLYN WITH COUNTERCLAIMS
ACUPUNCTURE, PC,
MCDONALD MEDICAL CARE, PLLC, COMPLETE
NEUROPSYCHOLOGY, P.C., DAVID ISRAEL, M.D., DEKEL
NY MEDICAL, PC, ERIC LUBlN, M.D., GORDON C. DAVIS
MEDICAL, P.C., HMP ORTHOPAEDICS, P.C., LONCEVITY
MEDICAL SUPPLY, INC., MANAN PATEL, MICHELE B.
GLISPY, MOLNAR MEDICAL SERVICES PC, MYOCARE PT
P.C., NEW MILLENNIUM MEDICAL IMAGING, P.C., NEW
YORK PHYSICAL THERAPY CARE, PC, NEXTSTEP
HEALING, INC, PRC SUPPLIES INC, SHAHID MIAN, M.D.
P.C., SIMEON ISAACS, M.D., ST. MARY FAMILY PHYSICAL
THERAPY, PC, STAND-UP MRI OF BENSONHURST, P.C.,
STAND-UP MRI OF MANHATTAN, P.C., TRUE HEALTH
PHARMACY INC., VITAL POINTS ACUPUNCTURE P.C.,
WENDY A. KEISER, D.C., ZQZ ACUPUNCTURE P.C.,
MARTINE ARIS, JOCELYNE JEAN-JUSTE, SAMUEL GAUYO
and LUILLY ACOSTACOLLADO,
DEFENDAN
__.____________________....______ S
Defendant NEXTSTEP HEALING, INC., by its attorney, VIKTORIYA LITVENKO, P.C., as
and for itsAnswer to Plaintiff's Complaiñt, upon information and belief, states as follows:
1. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 14, 16, 17, 18, 19, 20,
21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 45, 46, 47, 48,
49, 50, 51, 52, 53, 54, 55, 56, 57, 58 and 59 of the Complaint.
2. Admits the allegations contained in paragraph 22 of the Complaint.
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3. The allegations contained in paragraphs 42, 43 and 44 of the Complaint are notMng more
than conclusions of law or fact, and require neither admission nor a denial; however, to
the extent such allegations are offered for the truth thereof, they are denied.
AS AND FOR AN ANSWER TO A FIRST CAUSE OF ACTION
4. In response to paragraph 60 of the Complaint, Defendst repeats and reiterates each and
every denial of knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 1-59 of the Complaint.
5. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 61, 62, 63 and 64 of the Complaint.
AS AND FOR AN ANSWER TO A SECOND CAUSE OF ACTION
6. In response to paragraph 65 of the Complaint, Defendant repeats and reiterates each and
every denial of knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 1-64 of the Complaint.
7. Denies any knowledge or information sufficient to form a belief as to the allegations
coñtaiñêd in paragraphs 66, 67, 68 and 69 of the Complaint.
AS AND FOR AN ANSWER TO A THIRD CAUSE OF ACTION
8. In response to paragraph 70 of the Complent, Defendant repeats and reiterates each and
every denial of knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 1-69 of the Complaint.
9. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 71, 72 and 73 of the Complaint.
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AS AND FOR AN ANSWER TO A FOURTH CAUSE OF ACTION
10. In response to paragraph 74 of the Complaint, Defendant repeats and reiterates each and
every denial of knowledge or information sufficient to form a belief as to the allegations
conteincd in paragraphs 1-73 of the Complaint.
11. Denies any knowledge or inforreatioñ sufficient to form a belief as to the allegations
contained in paragraphs 75, 76 and 77 of the Complaint.
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
The Complaint fails to state facts sufficient to constitute a Cause of Action against the
answering Defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
Plaintiff has failed to join a necessary party to the action.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
Plaintiff's Complaint is barred by the applicable Statute of Limitations.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
Plaintiff is barred under the doctrine of latches and equitable estoppel
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
Plaintiff is barred under the doctrine of accord and satisfaction.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:
Plaintiff failed to properly deny the claim(s) submitted by the answering Defendant, pursuant
to Insurance Law §5106 and 11 NYCRR §65-3.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:
Plaintiff's designation of the venue for this action is improper.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
If a judgment is rendered in favor of the Plaintiff, such judgment should be reduced by prior
collateral payments.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE:
Plaintiff failed to mitigate damages.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE:
This action is duplicative of other pending actions.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE:
Plaintiff failed to comply with the applicable sections of the New York Insurance Law, Rules
and Regulations.
AS AND FOR A TVELFTH AFFIRMATIVE DEFENSE:
Plaintiff has failed to comply with 11 NYCRR §65.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE:
The collision in question was and is a covered incident under the subject policy.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE:
Plaintiff failed to prove that misrepresentation was material.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE:
Plaintiff failed to plead all of the elements of fraud with particularity.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE:
Plaintiff failed to properly and timely mail the EUO letters.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE:
Plaintiff failed to properly mail the IME letters.
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COUNTERCLAIMS
AS AND FOR A FIRST COUNTERCLAIM:
The answering Defendant hired an attorney with respect to the instant action. Defendant is
entitled to statutory attorney's fees pursuant to Insurance Law §5106(a).
AS AND FOR A SECOND COUNTERCLAIM:
Defeñdant seeks attorney's fees pursuant to 11 NYCRR §65-4.6(d) and (f).
AS AND FOR A THIRD COUNTERCLAIM:
Defendant seeks attorney's fees for having to defend this action pursuant to Mighty Midgets,
Inc. v. Centennial Ins. Co., 47 N.Y.2d 12 (1979) and U.S. Underwriters Ins. Co. v. City Club
Hotel, LLC, et al., 3 N.Y.3d 592 (2004).
WHEREFORE, Defendant, NEXTSTEP HEALING, INC., respectfully requests that the
Court dismiss Plaintiff's Complaint, award Defendant's claim(s), statutory attorney's fees, costs
and disbursements related to this action, and grant such other and further relief as the Court
deems just and proper.
Dated: Queens, New York
January 27, 2020 VIKTORIYA LITVENKO, P.C.
By: Viktoriya Litvenko, Esq.
Attorney for Defendant
NEXTSTEP HEALING, INC.
186*
61-43 Street
Fresh Meadows, NY 11365
(718) 640-2826
TO:
GOLDBERG MILLER & RUBIN, P.C
42®
60 EAST STREET, SUITE 520
NEW YORK, NY 10165
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF QUEENS )
MEDZANUN GULKAROV, being duly sworn, deposes and says:
1 am the owner of NEXTSTEP HEALING, INC., defêñdant in the within action. I have
read the foregoing ANSWER WITH COUNTERCLAIMS and know the contents thereof; the
same istrue to the best of my knowicdge, except as to the matters therein stated to be alleged upon
information and belief, and that as to those matters, I bêlieve them to be true.
MEDZANUN GULKAROV
Sworn to before me this U
day of , 2020
EKATERIMA PERMY.'tKOVAJTKUV
Noury PutÆc. EinP O' in
N iOth
FÜ gNo 01PE62321M
OuA f ·.:P GJéOns GOdnW
Comanss:œ ExpiresOctouer22, 2022
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
._COUNTY OF NEW YORK
HEREFORD INSURANCE COMPANY
INDEX No.: 657719/2019
PLAINTIFF,
-AGAINST-
AFFIRMATION
ALL CITY FAMILY HEALTHCARE et al. OF SERVICE
CENTER, INC.,
The undersigned, an attorney duly admitted to practice law in the Courts of the State of
New York, hereby affirms as follows under the penalty of perjury. Affirmant is a member of
VIKTORIYA LITVENKO, P.C., the attorney of record for Defendant, NEXTSTEP HEALING,
INC., in the within action. Affirmant is not a party to the action and is over 18 years of age.
On , Iserved a true copy of the annexed:
VE FIED ANSWER WITH COUNTERCLAIMS
by placing itin a post-paid sealed envelope, in an official depository of the U.S. Postal
Service, addressed to the last known address of the Plaintiff's attorney as indicated below:
Goldberg Miller & Rubin, P.C.
42nd
60 East Street, Suite 520
New York, NY 10165
VIKTORIYA LITVENKO
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020
Index No. 657719/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HEREFORD INSURANCE COMPANY
PLAINTIFF,
-AGAINST-
ALL CITY FAMILY HEALTHCARE CENTER, INC., et al.
DEFENDANTS.
VERIFIED ANSWER WITH COUNTERCLAIMS
VIKTORIYA LITVENKO, P.C.
Attorneyfor Defendant
NEXTSTEP HEALING, INC.
186d'
61-43 Street
Fresh Meadows, NY 11365
(718) 640-2826
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice before
the courts of the State of New Yorig certifies that, upon information and belief and reasonable
inquiry, the contentions contained in the annexed documents are not frivolous.
Dated: 01/27/2020 Signature: ................
Viktoriya Litvenko, Esq.
TO:
Goldberg Miller & Rubin, P.C.
42nd
60 East Street, Suite 520
New York, NY 10165
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Preview
FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 SUPREME COURT OF THE STATE OF NEW YORK ..ÛÛ_ _NT OF NEW ORK HEREFORD INSURANCE COMPANY PLAINTIFF, -AGAINST- INDEx No.: 657719/2019 ALL CITY FAMILY HEALTHCARE CENTER, INC., ARD RX INC., ATLAS PT, P.C., AVENUE OF PHYSICAL THERAPY & CHIROPRACTIC BACK PAIN VERIFIED ANSWER CARE, CHIROPRACTIC, PC, BACK TO BALANCE BROOKLYN WITH COUNTERCLAIMS ACUPUNCTURE, PC, MCDONALD MEDICAL CARE, PLLC, COMPLETE NEUROPSYCHOLOGY, P.C., DAVID ISRAEL, M.D., DEKEL NY MEDICAL, PC, ERIC LUBlN, M.D., GORDON C. DAVIS MEDICAL, P.C., HMP ORTHOPAEDICS, P.C., LONCEVITY MEDICAL SUPPLY, INC., MANAN PATEL, MICHELE B. GLISPY, MOLNAR MEDICAL SERVICES PC, MYOCARE PT P.C., NEW MILLENNIUM MEDICAL IMAGING, P.C., NEW YORK PHYSICAL THERAPY CARE, PC, NEXTSTEP HEALING, INC, PRC SUPPLIES INC, SHAHID MIAN, M.D. P.C., SIMEON ISAACS, M.D., ST. MARY FAMILY PHYSICAL THERAPY, PC, STAND-UP MRI OF BENSONHURST, P.C., STAND-UP MRI OF MANHATTAN, P.C., TRUE HEALTH PHARMACY INC., VITAL POINTS ACUPUNCTURE P.C., WENDY A. KEISER, D.C., ZQZ ACUPUNCTURE P.C., MARTINE ARIS, JOCELYNE JEAN-JUSTE, SAMUEL GAUYO and LUILLY ACOSTACOLLADO, DEFENDAN __.____________________....______ S Defendant NEXTSTEP HEALING, INC., by its attorney, VIKTORIYA LITVENKO, P.C., as and for itsAnswer to Plaintiff's Complaiñt, upon information and belief, states as follows: 1. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 14, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58 and 59 of the Complaint. 2. Admits the allegations contained in paragraph 22 of the Complaint. 1 of 8 FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 3. The allegations contained in paragraphs 42, 43 and 44 of the Complaint are notMng more than conclusions of law or fact, and require neither admission nor a denial; however, to the extent such allegations are offered for the truth thereof, they are denied. AS AND FOR AN ANSWER TO A FIRST CAUSE OF ACTION 4. In response to paragraph 60 of the Complaint, Defendst repeats and reiterates each and every denial of knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1-59 of the Complaint. 5. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 61, 62, 63 and 64 of the Complaint. AS AND FOR AN ANSWER TO A SECOND CAUSE OF ACTION 6. In response to paragraph 65 of the Complaint, Defendant repeats and reiterates each and every denial of knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1-64 of the Complaint. 7. Denies any knowledge or information sufficient to form a belief as to the allegations coñtaiñêd in paragraphs 66, 67, 68 and 69 of the Complaint. AS AND FOR AN ANSWER TO A THIRD CAUSE OF ACTION 8. In response to paragraph 70 of the Complent, Defendant repeats and reiterates each and every denial of knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1-69 of the Complaint. 9. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 71, 72 and 73 of the Complaint. 2 of 8 FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 AS AND FOR AN ANSWER TO A FOURTH CAUSE OF ACTION 10. In response to paragraph 74 of the Complaint, Defendant repeats and reiterates each and every denial of knowledge or information sufficient to form a belief as to the allegations conteincd in paragraphs 1-73 of the Complaint. 11. Denies any knowledge or inforreatioñ sufficient to form a belief as to the allegations contained in paragraphs 75, 76 and 77 of the Complaint. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE: The Complaint fails to state facts sufficient to constitute a Cause of Action against the answering Defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: Plaintiff has failed to join a necessary party to the action. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: Plaintiff's Complaint is barred by the applicable Statute of Limitations. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: Plaintiff is barred under the doctrine of latches and equitable estoppel AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: Plaintiff is barred under the doctrine of accord and satisfaction. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: Plaintiff failed to properly deny the claim(s) submitted by the answering Defendant, pursuant to Insurance Law §5106 and 11 NYCRR §65-3. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: Plaintiff's designation of the venue for this action is improper. 3 of 8 FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: If a judgment is rendered in favor of the Plaintiff, such judgment should be reduced by prior collateral payments. AS AND FOR A NINTH AFFIRMATIVE DEFENSE: Plaintiff failed to mitigate damages. AS AND FOR A TENTH AFFIRMATIVE DEFENSE: This action is duplicative of other pending actions. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE: Plaintiff failed to comply with the applicable sections of the New York Insurance Law, Rules and Regulations. AS AND FOR A TVELFTH AFFIRMATIVE DEFENSE: Plaintiff has failed to comply with 11 NYCRR §65. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE: The collision in question was and is a covered incident under the subject policy. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE: Plaintiff failed to prove that misrepresentation was material. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE: Plaintiff failed to plead all of the elements of fraud with particularity. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE: Plaintiff failed to properly and timely mail the EUO letters. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE: Plaintiff failed to properly mail the IME letters. 4 of 8 FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 COUNTERCLAIMS AS AND FOR A FIRST COUNTERCLAIM: The answering Defendant hired an attorney with respect to the instant action. Defendant is entitled to statutory attorney's fees pursuant to Insurance Law §5106(a). AS AND FOR A SECOND COUNTERCLAIM: Defeñdant seeks attorney's fees pursuant to 11 NYCRR §65-4.6(d) and (f). AS AND FOR A THIRD COUNTERCLAIM: Defendant seeks attorney's fees for having to defend this action pursuant to Mighty Midgets, Inc. v. Centennial Ins. Co., 47 N.Y.2d 12 (1979) and U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, et al., 3 N.Y.3d 592 (2004). WHEREFORE, Defendant, NEXTSTEP HEALING, INC., respectfully requests that the Court dismiss Plaintiff's Complaint, award Defendant's claim(s), statutory attorney's fees, costs and disbursements related to this action, and grant such other and further relief as the Court deems just and proper. Dated: Queens, New York January 27, 2020 VIKTORIYA LITVENKO, P.C. By: Viktoriya Litvenko, Esq. Attorney for Defendant NEXTSTEP HEALING, INC. 186* 61-43 Street Fresh Meadows, NY 11365 (718) 640-2826 TO: GOLDBERG MILLER & RUBIN, P.C 42® 60 EAST STREET, SUITE 520 NEW YORK, NY 10165 5 of 8 FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF QUEENS ) MEDZANUN GULKAROV, being duly sworn, deposes and says: 1 am the owner of NEXTSTEP HEALING, INC., defêñdant in the within action. I have read the foregoing ANSWER WITH COUNTERCLAIMS and know the contents thereof; the same istrue to the best of my knowicdge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters, I bêlieve them to be true. MEDZANUN GULKAROV Sworn to before me this U day of , 2020 EKATERIMA PERMY.'tKOVAJTKUV Noury PutÆc. EinP O' in N iOth FÜ gNo 01PE62321M OuA f ·.:P GJéOns GOdnW Comanss:œ ExpiresOctouer22, 2022 6 of 8 FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 SUPREME COURT OF THE STATE OF NEW YORK ._COUNTY OF NEW YORK HEREFORD INSURANCE COMPANY INDEX No.: 657719/2019 PLAINTIFF, -AGAINST- AFFIRMATION ALL CITY FAMILY HEALTHCARE et al. OF SERVICE CENTER, INC., The undersigned, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms as follows under the penalty of perjury. Affirmant is a member of VIKTORIYA LITVENKO, P.C., the attorney of record for Defendant, NEXTSTEP HEALING, INC., in the within action. Affirmant is not a party to the action and is over 18 years of age. On , Iserved a true copy of the annexed: VE FIED ANSWER WITH COUNTERCLAIMS by placing itin a post-paid sealed envelope, in an official depository of the U.S. Postal Service, addressed to the last known address of the Plaintiff's attorney as indicated below: Goldberg Miller & Rubin, P.C. 42nd 60 East Street, Suite 520 New York, NY 10165 VIKTORIYA LITVENKO 7 of 8 FILED: NEW YORK COUNTY CLERK 02/05/2020 12:40 PM INDEX NO. 657719/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/05/2020 Index No. 657719/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HEREFORD INSURANCE COMPANY PLAINTIFF, -AGAINST- ALL CITY FAMILY HEALTHCARE CENTER, INC., et al. DEFENDANTS. VERIFIED ANSWER WITH COUNTERCLAIMS VIKTORIYA LITVENKO, P.C. Attorneyfor Defendant NEXTSTEP HEALING, INC. 186d' 61-43 Street Fresh Meadows, NY 11365 (718) 640-2826 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice before the courts of the State of New Yorig certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: 01/27/2020 Signature: ................ Viktoriya Litvenko, Esq. TO: Goldberg Miller & Rubin, P.C. 42nd 60 East Street, Suite 520 New York, NY 10165 8 of 8