`
`
`
`
`
`Exhibit A
`
`
`
`Case 1:21-cv-03341 Document 1-1 Filed 06/14/21 Page 2 of 17 PageID #: 6
`
`Notice of Service of Process
`
`Primary Contact:
`
`Elizabeth Monohan
`Humana Inc.
`500 W Main St
`Louisville, KY 40202-2946
`
`null / ALL
`Transmittal Number: 23213938
`Date Processed: 05/18/2021
`
`Electronic copy provided to:
`
`Entity:
`
`Entity Served:
`
`Title of Action:
`
`Matter Name/ID:
`
`Document(s) Type:
`
`Nature of Action:
`
`Court/Agency:
`
`Case/Reference No:
`
`Jurisdiction Served:
`
`Date Served on CSC:
`
`Answer or Appearance Due:
`
`Originally Served On:
`
`How Served:
`
`Sender Information:
`
` Katelyn Justice
` Melissa Donovan
` Joyce King
` Kara Wort
` Wendy Enfors
` Eric Holdridge
` Glicelda Bradford
` Dora Menard
` Mary McGuire
` Justine Huckleberry
`
`Humana Health Plan, Inc.
`Entity ID Number 1884045
`Humana Health Plan, Inc.
`American Kinetics Lab, Inc. vs. Humana, Inc.
`American Kinetics Lab, Inc. vs. Humana, Inc. (11239923)
`Summons/Complaint
`Contract
`Kings County Supreme Court, NY
`507402/2021
`New York
`05/14/2021
`30 Days
`Secretary of State in NY on 04/09/2021
`Certified Mail
`Steven Yuniver
`718-402-2240
`
`Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not
`constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action.
`
`To avoid potential delay, please do not send your response to CSC
`251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | sop@cscglobal.com
`
`
`
`State of New York - Department of State
`Division of Corporations
`
`Party Served:
`HUMANA HEALTH PLAN, INC.
`
`Plaintiff/Petitioner:
`AMERICAN KINETICS LAB INC
`
`CORPORATION SERVICE COMPANY
`80 STATE STREET
`ALBANY, NY 12207-2543
`
`Dear Sir/Madam:
`Enclosed herewith is a legal document which was served upon the Secretary of
`State on 04/09/2021 pursuant to SECTION 306 OF THE BUSINESS CORPORATION LAW.
`This copy is being transmitted pursuant to such statute to the address
`provided for such purpose.
`
`Very truly yours,
`Division of Corporations
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`........... -- ............................ ----- .............. ------x
`AMERICAN KINETICS LAB, INC.
`Plaintiff/Petitioner,
`
`- against.-
`A INC., HUMANA INSURANCE COMPANY
`HU
`and HU~~~1~EfiL~I' ;
`INC: j
`,
`Defendant/Respondent.
`......................................................... -- ....... x
`NOTICE OF ELECTRONIC FILING
`(Mandatory Case)
`(Uniform Rule § 202.5=bb)
`
`Index No.507402/2021
`
`You have received this Notice because:
`1) The Plaintiff/Petitioner, whose name is listed above, has filed this case using the
`New York State Courts E-filing system ("NYSCEF"), and
`.2) You are a Defendant/Respondent (a party) in this case.
`
`• If you are represented bY an attorney:
`Give this Notice to your attorney. (Attorneys: see "Information for Attorneys" pg. 2).
`
`• If you are not represented by an attorney:
`You will be served with.all documents in paper and you must.serve and file your
`documents in paper, unless you choose to participate in e-filing.
`If you choose to participate in e-filing, you must have access to a computer and a
`scanner or other device to convert documents into electronic format, a connection
`to the internet; and an e-mail address to receive service of documents.
`The benefits of participating in e filing include:
`• serving and filing your documents electronically
`free access'to view and print your e-filed documents
`• .limiting your number of trips to the courthouse
`• paying any court fees on-line (credit card needed)
`To register for e-filing or for more information about how e-filing works:
`• visit: www.nycourts.Aov/efile-unrepresented or
`• contact the Clerk's Oft'ice or Help Center at the court where the case was filed. Court
`contact information can be found at www.nvcourts.gov
`
`•
`
`Page 1 of 2
`
`EFM-1
`
`
`
`To find legal information to help you represent yourself visit www.nycourthelp.pov
`
`Information for Attorneys
`(E-filing is Mandatory for Attorneys)
`
`An attorney representing a party who is served with this notice must either:
`1) immediately record his or her representation within the e-filed matter on the
`NYSCEF site www.nycourts.gov/efile; or
`
`2) file the Notice of Opt-Out form with the clerk of the court where this action is
`pending and serve on all parties. Exemptions from mandatory e-filing are limited to
`attorneys who certify in good faith that they lack the computer hardware and/or
`scanner and/or internet connection or that they lack (along with all employees subject
`to their direction) the knowledge to operate such equipment. [Section 202.5-bb(e)]
`
`For additional information about electronic filing and to create a NYSCEF account, visit the
`NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center
`(phone: 646-386-3033; e-mail: nyscef _nvc,_ourts,gov).
`
`Dated:
`
` March 29, 2021
`
`I_auren McVotdrlck
`
`Name
`Sinayskaya Yuniver, P.C.
`
`Firm Name
`
`To: Supreme Judicial Services
`
`710 Avenue U
`
`Brooklyn, NY 11223
`
`Address
`
`(718)402-2240
`Phone
`
`laurenm@sypcl.com
`- ai
`
`Index #
`
`Page 2 of 2
`
`EFM-1
`
`2/24/20
`
`
`
`` FILED: KINGS COUNTY CLERK 03 29 2021 12:47 P
`NYSCEF DOC. NO. 1
`
`INDEX N0. 507402/2021
`RECEIVED NYSCEF: 03/29/2021
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`-=- ------------------- ------------------------- X
`AMERICAN KINETICS LAB, 1NC.
`Plaintiffs,
`
`-against-
`
`HUMANA
`INC.,
`HUMANA,
`and
`COMPANY
`1NSURANCE
`HUMANA HEALTH PLAN, INC.
`
`Defendants.
`---------------------------------------------- -X
`
`To the above named Defendants:
`
`Index No.
`
`Plaintiff designates Kings
`County as place of trial.
`The basis of venue is
`Defendant's place of business
`
`SUMMONS
`
`Plaintiff is located at
`87 4`" Avenue
`Brooklyn, NY 11217
`
`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 Plaintiff's attorney(s) within 20 days after the service
`ofxhis summons, exclusive of the day of the service (or within 30 days after the service is
`completed 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.
`
`Dated: MARCH 29.2021
`Brooklyn, NY
`
`Yours etc.,
`
`Steven Yuniver, Esq. '
`SINAYSKAYA YUNIVER, P.C.
`710 Avenue U
`Brooklyn, NY 11223
`t: (718) 402-2240
`f: (718) 305-4571
`Steven@sypcl.com
`
`1 of 10
`
`
`
`` FILED: KINGS COIINTY CLERK 03 29 2021 12:47 P
`NYSCEF DOC. NO. 1
`
`INDEX NO. 507402/2021
`RECEIVED NYSCEF: 03/29/2021
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`-------------- --------------
`----------------X
`AMERICAN KINETICS LAB, INC.
`Plaintiffs,
`
`-against-
`
`HUMANA
`INC.,
`HUMANA,
`and
`COMPANY
`INSURANCE
`HUMANA HEALTH PLAN, INC.
`
`Index No.
`
`Plaintiff designates Kings
`County as place of trial.
`The basis of venue is
`Defendant's place of business
`
`VERIFIED COMPLAINT
`
`Plaintiff is located at
`87 4'h Avenue
`Brooklyn, NY 11217
`
`-
`
`Defendants.
`----------------------------------------- -X
`Plaintiff, by their attorneys, SINAYSKAYA YUNIVER, P.C., as and for a Verified
`Complaint herein, respectfully sets forth and alleges the following upon information and
`belief, unless stated otherwise:
`NATURE OF THE ACTION
`
`1.
`
`This action is brought by Plaintiff against the Defendants for their breaches of
`
`fiduciary duty, breach of contract and other violatiotis of law. Plaintiff seeks redress
`
`for the illegal, wrongful and oppressive actions of the Defendant named herein.
`
`PARTIES
`
`2.
`
`That at all times hereinafter mentioned, Plaintiff, AMERICAN KiNETICS LAB,
`
`INC (hereinafter "Plaintiff') is a New York organization located at 87 4'h Avenue,
`
`Brooklyn, NY 11217.
`
`3.
`
`Upon Infotmation and belief, at all times herein after mentioned HUMANA
`
`HEALTH PLAN, INC. (hereinafter "Defendant") was and still is a corporation
`
`established under the laws of, and authorized to do business within, the State of
`
`New York and maintains its principle place of business at 80 State Street, Albany,
`
`NY, 12207-2543.
`
`JURISDICTION AND VENUE
`
`2
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`RECEIVED NYSCEF: 03/29/2021
`
`4.
`
`This Court has jurisdiction over this action based on the location of the Defendant
`
`and its .principal- operations, which is within the County of Kings.
`
`SUMMARY OF THE ACTION
`
`5.
`
`• This action arises out of the Defendant's knowing and/or reckless breaches of
`
`fiduciary duties to and contractual obligations with the Plaintiff. As a result of the
`
`breaches of contract and fiduciary duties, the Plaintiff has been damaged in an
`
`amount which will be determined by this Court but which is believed to be in excess
`
`of One Hundred Two Thousand Eight Hundred Thirty Two Dollars and 52/100
`
`($102,832.52).
`
`,
`
`The Defendant engaged in the unauthorized and illegal act including but not limited
`
`to: the breaches of a contract entered into with Plaintiff.
`
`Upon information and belief, with and through further discovery, numerous
`
`instances of the Defendant's breaches of contractual and fiduciary duties will be
`
`revealed.
`
`MATERIAL FACTUAL ALLEGATIONS
`
`Ranging from August-October2020, Defendants provided coverage to the patients
`
`of the Plaintiffs; Plaintiffs Durable Medical Equipment ("DME Providers")
`
`As a DME provider Plaintiffs provided their patients with items such as Hinged
`
`Knee Braces, Suspension Sleeve's, Back Brace, etc.
`
`6.
`
`7.
`
`8.
`
`9.
`
`10.
`
`On or about October, 2020 Defendants conducted an internal Audit and sent out
`
`letters to Plaintiff indicating that coverage should not have been provided; on the
`
`fact that.there is no proof_of the patients physically receiving consultations by the
`
`physicians.
`
`3
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`` FILED: KINGS COUNTY CLERK 03 29 2021 12:47 PM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 507402/2021
`RECEIVED NYSCEF: 03/29/2021
`
`11.
`
`DME Providers are not responsible for referring to Physicians internal policies.
`
`.._ 12. ..._ According to the_Department of Health and Human Services Centers for Medicare-
`
`& Medicaid Services, section 42 CFR Parts 400, 405, 409, 410, 412, 415, 417, 418,
`
`421, 422, 423, 425, 440, 482, and 510 [CMS-1744-IFC] it is clearly stated that due
`
`to the switch to remote operations, physicians may inhibit innovative uses of
`
`technology and capacity to operate their practice.
`
`13.
`
`Plaintiffs have no control over the operations of the physicians used by patients,
`
`and do not interfere with their forms of consultations.
`
`14.
`
`Plaintiffs were under the impression that all consultations have been conducted
`
`following legal guidelines set by the law.
`
`15.
`
`Defendants proceeded to retroactively deny all further DME claims that Plaintiffs
`
`had fulfilled and were subjectto coverage.
`
`16.
`
`On or about November 11, 2020, Plaintiff had sent out an appeal to the Defendants
`
`requesting for a formal investigation and re-evaluation of the Insurance claims that
`
`had previously been sent to Defendants.
`
`17.
`
`Plaintiff has provided Defendant with Medical Records from the Prescribing
`
`Doctor, Clinical Summaries, Order Forms, including fully executed Prescriptions,
`
`Delivery Information, Billing Information, and other documents that have indicated
`
`the Medical necessity of the goods provided.
`
`18.
`
`19.
`
`To present date Defendant has failed to pay Plaintiff, as legally mandated.
`
`Plaintiff has made numerous requests for payment through various forms of
`
`communication, including but not limited to, outgoing phone calls and emails to
`
`Defendant.
`
`4
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`RECEIVED NYSCEF: 03/29/2021
`
`20.
`
`By reason of the facts and circumstances stated above, Defendant has breached the
`
`Agreement.
`
`21.
`
`All of the actions of the Defendants were taken in their individual interests, breach
`
`of contract with the Plaintiff, as well as breaches of their fiduciary duties to
`
`Plaintiff.
`
`22.
`
`The conduct of the Defendants complained of herein, involves the intentional
`
`and/or reckless disregard of their fiduciary duties to the Plaintiff, which they knew,
`
`or should have known, would result_ in serious damages to the Plaintiff, and
`
`Plairitiff's patients.
`
`23.
`
`As a result of the foregoing acts of breach of contract and fiduciary duties, as well
`
`as conversion, the Plaintiff has been damaged in amounts to be determined at trial
`
`but which are believed to be more than One Hundred Two Thousand Eight Hundred
`
`Thirty Two Dollars and 52/100 ($102,832.52).
`
`24.
`
`At the time this action was initiated, at all relevant times prior thereto up until the
`
`present, the Defendant has not compensated Plaintiff for their services.
`
`25.
`
`As a direct and proximate result of the Defendant's breaches of the Agreements,
`
`the Plaintiff has suffered damages as is set forth herein.
`
`AS AND FOR THE FIRST CAUSE OF ACTION
`(Breach of Contract)
`
`26.
`
`Plaintiff repeats and realleges each and every allegation contained in all paragraphs
`
`above, as if fully set forth herein.
`
`27.
`
`Plaintiffs had sent over all required documentation to Defendants, in order to ensure
`
`full coverage for the DME provided to patients.
`
`5
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`FILED: KINGS COUNTY CLERK 03 29 2021 12:47 PH
`NYSCEF DOC. NO. 1
`
`INDEX NO. 507402/2021
`RECEIVED NYSCEF: 03/29/2021
`
`28.
`
`Defendants are in.clear Breach of Contract and violation of Department of Health
`
`and Human Services Centers for Medicare & Medicaid Services, section 42 CFR
`
`Parts 400, 405, 409, 410, 412, 415, 417, 418, 421, 422; 423, 425, 440, 482, and 510
`
`[CMS-1744-IFC], which indicates that due to the COVID-19 Pandemic; physicians
`
`are not obligated to conducted physical examinations in their offices unless deemed
`an emergency. The use of technology, and video conferencing is enough for a
`
`29.
`
`30.
`
`physician to write out a prescription for their patients.
`
`Defendants
`
`Plaintiff has heretofore demanded that Defendants perform their obligations under
`
`the terms of the Agreement and Defendant has refused.
`
`31.
`
`By reason of the foregoing acts and conduct, Plaintiff is entitled to recover all actual
`
`damages sustained as a result of the acts as alleged above, plus consequential
`
`damages in accordance with the evidence, interest, costs, and reasonable attorneys'
`
`fees. Said damages are to be detennined during the course of this proceeding, but
`
`are in no event less than One Hundred Two Thousand Eight Hundred Thirty Two
`
`Dollars and 52/100 ($102,832.52).
`
`_
`
`AS AND FOR THE SECOND CAUSE OF ACTION
`(Unjust Enrichment)
`
`32.
`
`Plaintiff repeats and realleges each and every allegation contained in all paragraphs
`
`above, as if fully set forth herein.
`
`33.
`
`Defendant's acts described above constitute unjust enrichment in that Defendant
`
`has retained the benefits of Plaintiffls services without just compensation.
`
`34.
`
`. Upon information and belief, Defendant is the sole beneficiary of these unlawfully
`
`and improperly retained fees.
`
`6
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`INDEX NO. 507402/2021
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`
`.35.
`
`Upon information and belief, as a result of the acts and omissions pleaded herein,
`
`.._Defendant has been unjustly enriched in an amount to be determined, but in no
`
`event less than One Hundred Two Thousand Eight Hundred Thirty Two Dollars
`
`and 52/100 ($102,832.52).
`
`36.
`
`By reason of the foregoing, Plaintiff has been damaged in an amount to be
`
`determined, but in no event less than One Hundred Two Thousand Eight Hundred
`
`-
`
`Thirty Two Dollars and 52/100 ($102,832.52).
`
`AS AND FOR THE THIRD CAUSE OF ACTION
`(Violation of General Business Law §349)
`
`37.
`
`Plaintiff repeats and realleges each and every allegation contained in all paragraphs
`
`above, as if fully set forth herein.
`
`38.
`
`Pursuant to General Business Law Section §349 of the State of New York,
`
`Defendant is prohibited from engaging in deceptive acts and practices in the
`
`conduct of their business or in the furnishing of any service in the State.ofNew
`
`York.
`
`39.
`
`Defendant's acts described above constitute violations of the state law because
`
`Defendant has engaged in deceptive acts and practices in violation of General
`
`Business Law §349.
`
`40.
`
`Defendant's actions have not only caused injury to Plaintiff, but ,also have the
`potential of causing harm to the public at large.
`
`41.
`
`Due to the willful and wanton nature of the Defendant's acts, the need to both deter
`
`such conduct
`
`in the future and prevent public harm, Plaintiff demands
`
`compensatory damages, in the amount of One Hundred Two Thousand Eight
`
`Hundred Thirty Two Dollars and 52/100 ($102,832.52), punitive damages in the
`
`7
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`NYSCEF DOC. N0. 1
`
`IxDEx No. so74o2 / 2 021
`RECEIVED NYSCEF: 03/29/2021
`
`amount of Five Hundred Thousand Dollars ($500,000.00), and an award of
`
`attorneys' fees as. authorized by General Business Law §349.
`
`AS AND FOR THE FOURTH CAUSE OF ACTION
`(Quantum Meruit)
`
`42.
`
`Plaintiff repeats and realleges each and every allegation contained in all paragraphs
`
`above, as if fully set forth herein.
`
`43.
`
`Plaintiff performed all services required of them in good faith and with the
`
`44.
`
`45.
`
`expectation of payment by Defendants. .
`
`Defendants accepted the services proffered by Plaintiff.
`
`By reason of the foregoing acts and conduct, Plaintiff is entitled to recover all actual
`
`damages sustained as a result of the acts as alleged above, plus consequential
`
`damages in accordance with the evidence, interest, costs, and reasonable attorneys'
`
`fees. Said damages are to be determined during the course of this proceeding, but
`
`are in no event less than One Hundred Two Thousand Eight Hundred Thirty Two
`
`Dollars and 52/100 ($102,832.52).
`
`AS AND FOR THE FIFTH CAUSE OF ACTION
`(Breach of Fiduciary Duty)
`
`46.
`
`Plaintiff repeats and realleges each and every allegation contained in all paragraphs
`
`above, as if fully set forth herein.
`
`47.
`
`As a result of the Agreement and the special relationship between the Defendant
`
`and Plaintiff, Defendant was a fiduciary of Plaintiff.
`
`48.
`
`49.
`
`Defendants had a fiduciary obligation to pay for the services of the client:
`
`As a result of and by way of the acts and omissions pleaded herein, Defendant
`
`breached their fiduciary obligations to Plaintiff.
`
`8
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`
`INDEX NO. 507402/2021
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`
`50.
`
`By reason of the foregoing acts and conduct, Plaintiff is entitled to recover all actual
`
`.damages_he sustained as' a result of the acts as alleged above, plus corisequential
`
`damages in accordance with the evidence, interest, costs, and reasonable attorneys'
`
`fees. Said damages are to be detennined during the course of this proceeding, but
`
`are in no event less than One Hundred Two Thousand Eight Hundred Thirty Two
`
`Dollars and 52/100 ($102,832.52).
`
`AS AND FOR THE SIXTH CAUSE OF ACTION
`(Restraining Order)
`
`51.
`
`Plaintiff repeats and realleges each and every allegation contained in all paragraphs
`
`above, as if fully set forth herein.
`
`52.
`
`Defendant should be restrained from deny any further claims and withdrawing
`
`funds from future payments.
`
`ADDITIONAL PRAYER FOR RELIEF
`(Punitive Damages)
`
`53.
`
`Plaintiff repeats and realleges each and every allegation contained in all paragraphs
`
`above, as if fully set forth herein.
`
`54.
`
`For causes of action not otherwise providing for and by reason of the foregoing,
`
`Plaintiff is entitled to recover punitive damages against Defendant in an amount
`
`sufficient to punish their wrongful conduct and deter such behavior in the future,
`
`the specific amount to be determined but believed to be no less than Five Hundred
`
`Thousand Dollars and 00/100 ($500,000.00).
`
`WHEREFORE, Plaintiff demands judgment against Defendant as follows:
`
`a) the issuance of an Order directing the Defendants to account for all sums they have
`
`9
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`
`INDEX NO. 507402/2021
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`
`received from the Plaintiffs, and directing them to-pay for all damages the Plaintiff has
`
`suffered as a result of the Defendant's improper and wrongful acts;
`
`b) awarding damages against the Defendant in an amount to be determined at trial but
`
`not less than One Hundred Two Thousand Eight Hundred Thirty Two Dollars and 52/100
`
`($102,832.52);
`
`c) costs and disbursements of the within action as well as attorneys' fees incurred in
`
`connection therewith;
`
`d) punitive damages as are provided for under the law;
`
`e) such other and further relief in favor of the Plaintiff as the. Court deems just and
`
`proper..
`
`Dated: WWR~~A9 ~~21
`Brooklyn, NY
`
`Yours etc.,
`
`Steven Yuniver, Esq.
`SINAYSKAYA YUNIVER, P.C.
`710 Avenue U
`Brooklyn, NY 11223
`t: (718) 402-2240
`f: (718) 305-4571
`Steven@sypcl.com
`
`Attorney for the Plaintiffs
`American Kinetics Lab, Inc.
`
`]0
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`Case 1:21-cv-03341 Document 1-1 Filed 06/14/21 Page 16 of 17 nge|D_'#: 20. ‘
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`@377
`
`
`
`20210510!)
`
`
`
`III~IIQInIII~III~IIVII~II~IN~IhUInIN
`
`202105100453
`CORPORATION SERVICE COMPANY
`80'STATE STREET
`ALBANY NY;12207-2543 .
`
`I~f~(ll~i~~ltlli~r~l~~rh~~~llll~~,,~~~~~~~f,I1~it~1,',t►
`
`