`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
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`
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`INDEX NO. 654739/2023INDEX NO. 654739/2023
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`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
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`
`
`
`
`
`SUMMONS
`
`
`Index #:
`
`Plaintiffs designate New York
`County as the place of trial
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`LIBERTY MUTUAL INSURANCE COMPANY and
`LIBERTY MUTUAL PERSONAL INSURANCE COMPANY,
` Plaintiffs,
`
`-against-
`
`SERGIO TOLENTINO,
` Individual Defendant,
`
`and
`
`ATLANTIC MEDICAL & DIAGNOSTIC PC
`BRIDGEVIEW SUPPLY CORP
`CITIMED COMPLETE MEDICAL CARE PC
`DIANA BEYNIN, DC
`INTEGRATED MEDICAL REHABILITATION AND
` DIAGNOSTICS PC
`LANG EQUIPMENT, INC
`ORTHO & PAIN CENTER OF NJ
`QUICK HEALTH PHARMACY CORP
`TANIYN LEASING CORP
`UNITY CARE PHYSICAL THERAPY PC,
` Medical Provider Defendants,
` Collectively, The Defendants.
`-------------------------------------------------------------------------X
`
`TO THE ABOVE NAMED DEFENDANTS:
`
`
`
`
`YOU ARE HEREBY SUMMONED to answer the Complaint of the Plaintiffs, a copy of
`
`which is hereby served upon you, and to serve copies of your answers upon the undersigned within
`
`twenty (20) days after service upon you of the Summons and Complaint, exclusive of the day of
`
`service (or within 30 days after the service is complete if this summons and complaint is not
`
`personally delivered to you within the State of New York). In the event you fail to answer the
`
`Plaintiffs’ Complaint, judgment will be taken against you by default for the relief demanded in the
`
`Complaint.
`
`Dated: White Plains, New York
`
`September 27, 2023
`
`
`
`
`1 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
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`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
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`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`Yours etc.,
`
`_______________________
`Nicole Duke, Esq.
`CORREIA, CONWAY & STIEFELD
`Attorneys for Plaintiffs
`LIBERTY MUTUAL INSURANCE
`COMPANY, et al.
`10 Bank Street, Suite 1200
`White Plains, NY 10606
`(914) 997-8100
`
`
`
`
`TO:
`
`
`SERGIO TOLENTINO
`305 W. 28th Street, Apt. 19F
`New York, NY 10001
`&
`1562 Townsend Avenue, Apt. 4B
`Bronx, NY 10452
`&
`402 Larkspur Loop
`Lancaster, PA 17602
`
`ATLANTIC MEDICAL & DIAGNOSTIC PC
`c/o Registered Agents Inc.
`418 Broadway, Ste. R
`Albany, NY 12207
`
`BRIDGEVIEW SUPPLY CORP
`c/o The Corporation
`218 Sunrise Hwy.
`Rockville Centre, NY 11570
`
`CITIMED COMPLETE MEDICAL CARE PC
`c/o Regina Moshe
`32 Farmstead Ln.
`Glen Head, NY 11545
`
`DIANA BEYNIN, DC
`210 Finley Ave.
`Staten Island, NY 10306
`
`INTEGRATED MEDICAL REHABILITATION
`AND DIAGNOSTICS PC
`18 Green Lawn Road
`Huntington, NY 11743
`
`
`
`2 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
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`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`LANG EQUIPMENT, INC
`189 Sunrise Highway, Suite 301
`Rockville Centre, NY 11570
`
`ORTHO & PAIN CENTER OF NJ
`903 Sheridan Ave.
`Bronx, NY 10451
`&
`P.O. Box 110055
`Nutley, NJ 07110
`
`QUICK HEALTH PHARMACY CORP
`104-12 Metropolitan Ave.
`Forest Hills, NY 11375
`
`TANIYN LEASING CORP
`c/o The Corporation
`918 Rockaway Ave.
`Valley Stream, NY 11581
`
`UNITY CARE PHYSICAL THERAPY PC
`c/o The Corporation
`1711 Benson Ave., #1F
`Brooklyn, NY 11214
`
`
`
`3 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
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`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`VERIFIED COMPLAINT
`
`Index No.:
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`LIBERTY MUTUAL INSURANCE COMPANY and
`LIBERTY MUTUAL PERSONAL INSURANCE COMPANY,
` Plaintiffs,
`
`-against-
`
`SERGIO TOLENTINO,
` Individual Defendant,
`
`and
`
`ATLANTIC MEDICAL & DIAGNOSTIC PC
`BRIDGEVIEW SUPPLY CORP
`CITIMED COMPLETE MEDICAL CARE PC
`DIANA BEYNIN, DC
`INTEGRATED MEDICAL REHABILITATION AND
` DIAGNOSTICS PC
`LANG EQUIPMENT, INC
`ORTHO & PAIN CENTER OF NJ
`QUICK HEALTH PHARMACY CORP
`TANIYN LEASING CORP
`UNITY CARE PHYSICAL THERAPY PC,
` Medical Provider Defendants,
` Collectively, The Defendants.
`-------------------------------------------------------------------------X
`
`
`Plaintiffs, LIBERTY MUTUAL INSURANCE COMPANY and LIBERTY MUTUAL
`
`PERSONAL INSURANCE COMPANY (hereinafter “Plaintiffs” or “Liberty Mutual”) by and
`
`through their attorneys, The Law Offices of Correia, Conway & Stiefeld, as set forth in their
`
`Verified Complaint in this action, hereby allege, upon information and belief, as follows:
`
`
`
`INTRODUCTION
`
`This is an action for 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
`
`above-named Defendant.
`
`1.
`
`This action stems from claims by the Medical Provider Defendants seeking
`
`reimbursement for bills submitted to the Plaintiffs for reimbursement under New York’s No-Fault
`
`laws. This action seeks a Preliminary Injunction barring the Defendants from seeking any No-Fault
`
`reimbursement in connection with all claims brought out of the alleged motor vehicle accident
`
`
`
`4 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
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`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`involving the Individual Defendant as detailed hereinafter; a Stay of all pending litigation and/or
`
`arbitrations now brought by the Medical Provider Defendants involving this claim that exist in the
`
`Civil Courts of the City of New York or elsewhere; a prohibition of the Defendants from further
`
`submitting bills to Plaintiffs for No-Fault reimbursement connected with this claim, and an overall
`
`Declaration from the Court affirming that the denials of all claims for No-Fault benefits by the
`
`Plaintiffs were proper.
`
`JURISDICTION AND VENUE
`
`2.
`
`This court has personal jurisdiction over this matter under CPLR §§301, 302(a)(1),
`
`and 302(a)(3).
`
`3.
`
`Venue is proper in New York County based on Plaintiffs transacting business in
`
`New York County by virtue of selling policies of automobile insurance to residents of New York
`
`County. Moreover, Plaintiffs maintain several office locations in New York County, including an
`
`office at 28 Liberty St., 5th Floor, New York, NY 10005.
`
`PARTIES
`
` PLAINTIFFS
`
`4.
`
`Collectively, the Plaintiffs are insurance companies under the Liberty Mutual
`
`umbrella that are authorized to write insurance policies in New York State.
`
`5. Plaintiff LIBERTY MUTUAL PERSONAL INSURANCE COMPANY is a Liberty
`
`Mutual Insurance Company, a Massachusetts corporation with a principal place of business at 175
`
`Berkeley Street, Boston, Massachusetts 02116.
`
`6. Liberty Mutual is authorized to write insurance policies in New York State and
`
`Liberty Mutual transacts business in all counties of the State of New York.
`
`7. Plaintiffs wrote an insurance policy issued to Individual Defendant SERGIO
`
`TOLENTINO.
`
`INDIVIDUAL DEFENDANT
`
`8. Upon information and belief, Defendant SERGIO TOLENTINO (hereinafter,
`
`
`
`5 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
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`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`“TOLENTINO”) is an individual believed to be residing in the State of New York at 305 W. 28th
`
`Street, Apt. 19F, New York, NY 10001 and/or 1562 Townsend Avenue, Apt. 4B, Bronx, NY 10452,
`
`with a Pennsylvania policy address of 402 Larkspur Loop, Lancaster, PA 17602.
`
`MEDICAL PROVIDER DEFENDANTS
`
`9. Upon information and belief, Defendant ATLANTIC MEDICAL & DIAGNOSTIC
`
`PC is a domestic professional service corporation, which is transacting or has transacted business in
`
`the State of New York at c/o Registered Agents Inc., 418 Broadway, Ste. R, Albany, NY 12207.
`
`10.
`
`Upon information and belief, Defendant BRIDGEVIEW SUPPLY CORP is a
`
`domestic business corporation, which is transacting or has transacted business in the State of New
`
`York at c/o The Corporation, 218 Sunrise Hwy., Rockville Centre, NY 11570.
`
`11.
`
`Upon information and belief, Defendant CITIMED COMPLETE MEDICAL
`
`CARE PC is a domestic professional service corporation, which is transacting or has transacted
`
`business in the State of New York at c/o Regina Moshe, 32 Farmstead Ln., Glen Head, NY 11545.
`
`12.
`
`Upon information and belief, Defendant DIANA BEYNIN, DC is a Physician, who
`
`is transacting or has transacted business in the State of New York at 210 Finley Ave., Staten Island,
`
`NY 10306.
`
`13.
`
`Upon
`
`information
`
`and belief, Defendant
`
`INTEGRATED MEDICAL
`
`REHABILITATION AND DIAGNOSTICS PC is a domestic professional service corporation,
`
`which is transacting or has transacted business in the State of New York at 18 Green Lawn Road,
`
`Huntington, NY 11743.
`
`14.
`
`Upon information and belief, Defendant LANG EQUIPMENT, INC is a domestic
`
`business corporation, which is transacting or has transacted business in the State of New York at
`
`189 Sunrise Highway, Suite 301, Rockville Centre, NY 11570.
`
`15.
`
`Upon information and belief, Defendant ORTHO & PAIN CENTER OF NJ is a
`
`foreign company, which is transacting or has transacted business in the State of New York at 903
`
`Sheridan Ave., Bronx, NY 10451 and/or P.O. Box 110055, Nutley, NJ 07110.
`
`
`
`6 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
`
`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`16.
`
`Upon information and belief, Defendant QUICK HEALTH PHARMACY CORP is
`
`a domestic business corporation, which is transacting or has transacted business in the State of New
`
`York at 104-12 Metropolitan Ave., Forest Hills, NY 11375.
`
`17.
`
`Upon information and belief, Defendant TANIYN LEASING CORP is a domestic
`
`businesss corporation, which is transacting or has transacted business in the State of New York at
`
`c/o The Corporation, 918 Rockaway Ave., Valley Stream, NY 11581.
`
`18.
`
`Upon information and belief, Defendant UNITY CARE PHYSICAL THERAPY
`
`PC is a domestic professional service corporation, which is transacting or has transacted business in
`
`the State of New York at c/o The Corporation, 1711 Benson Ave., #1F, Brooklyn, NY 11214.
`
`FACTUAL BACKGROUND
`
`19.
`
`This action arises out of claims for no-fault reimbursement stemming from a motor
`
`vehicle accident involving Individual Defendant TOLENTINO on July 14, 2022 (hereinafter
`
`referred to as “the occurrence” or “the accident”). TOLENTINO was operating the insured 2015
`
`Audi and was at a red light when suddenly he was rear ended by the claimant vehicle. No police
`
`were called due to it being a minor loss and no injuries at scene.
`
`20.
`
`The policy in question is a Pennsylvania policy issued to TOLENTINO under policy
`
`number AOV28166015340, effective 11/25/21 - 11/25/22, covering the 2015 Audi in the accident.
`
`However, since the accident occurred in New York, limits of no-fault medical bill coverage is
`
`$50,000 per person. The policy address provided to Plaintiffs by the insured was 402 Larkspur Loop,
`
`Lancaster, PA 17602-3366.
`
`21.
`
`Following the accident, the Individual Defendant sought medical treatment for his
`
`alleged injuries.
`
`22.
`
`The Medical Provider Defendants then submitted bills on assignment from the
`
`applicable Individual Defendant to the Plaintiffs seeking No-Fault and bodily injury reimbursement.
`
`23.
`
`The following Medical Provider Defendants submitted bills for TOLENTINO:
`
`All Billing for TOLENTINO:
`ATLANTIC MEDICAL AND DIAGNOSTIC
`BRIDGEVIEW SUPPLY CORP
`CITIMED COMPLETE MEDICAL CARE
`
`
`$2,244.43
`$1,842.08
`$1,970.88
`
`
`
`7 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
`
`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`
`
`All Billing for TOLENTINO:
`DIANA BEYNIN, DC
`INTEGRATED MEDICAL REHABILITATION
`LANG EQUIPMENT, INC
`ORTHO & PAIN CENTER OF NJ
`QUICK HEALTH PHARMACY
`TANIYN LEASING CORP
`UNITY CARE PHYSICAL THERAPY PC
`
`Total Billing
`
`
`$4,244.82
`$142.62
`$2,350.80
`$300.00
`$1,615.30
`$5,484.50
`$4,483.49
`
`$24,678.92
`
`24.
`
`25.
`
`The total medical billing under the claim to date is $24,678.92.
`
`Upon receipt of the claim, an investigation was begun to verify the loss facts and
`
`additionally, due to garaging concerns on the part of the named insured.
`
`26.
`
`Individual Defendant TOLENTINO’s No-Fault application and the medical billing
`
`submitted on his behalf lists his address as 1562 Townsend Avenue, Apt. 4B, Bronx, New York. All
`
`of the treatment afforded to TOLENTINO was in New York.
`
`27.
`
`An Accurint report was run, which associated TOLENTINO at 305 W. 28th ST.,
`
`Apt. 19F, New York, NY from January 2012 to July 2022. He was last associated with 402 Larkspur
`
`Loop, Lancaster, PA from June 2017 until June 2020.
`
`28.
`
`On August 25, 2022, a visit was made to 402 Larkspur Loop, Lancaster, PA to
`
`conduct a residency check. At 400 Larkspur Loop, contact was made with a middle-aged, African
`
`male named Amadou who stated that “Frank” lived next door and he has never seen an Audi Q3 in
`
`the insured's driveway. At 404 Larkspur Loop contact was made with Devon, a Caucasian male who
`
`also stated that Frank lived at 402 Larkspur Loop, and he has never seen a 2015 Audi Q3 in the
`
`insured’s driveway. At 406 Larkspur Loop contact was made with an unknown, older, African
`
`American male who also stated Frank lived at 402 Larkspur Loop and confirmed not seeing a 2015
`
`Audi Q3 in the provided address. At 407 Larkspur Loop contact was made with Ken Hertz an older,
`
`Caucasian male who is the homeowner's association president of the neighborhood. Hertz also
`
`confirmed Frank lived at 402 Larkspur Loop and he has never seen a 2015 Audi Q3 in the insured’s
`
`driveway.
`
`29.
`
`An initial letter was sent to TOLENTINO on August 24, 2022, notifying him of an
`
`appearance scheduled for September 16, 2022 at 10:00 a.m. In consideration of the Covid-19
`
`
`
`8 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
`
`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`Pandemic, and the City and State restrictions in place as a result, the Examination Under Oath was
`
`to be held by video conference via the internet. Said notification letters were sent to TOLENTINO
`
`at 402 Larkspur Loop, Lancaster, PA 17602; 305 W. 28th Street, Apt. 19F, New York, New York
`
`10001 and 1562 Townsend Avenue, Apt. 4B, Bronx, New York 10452 as well as emailed to him at
`
`sergiomacoris@yahoo.com.
`
`30.
`
`On September 13, 2022, a letter was sent to TOLENTINO in Spanish notifying him
`
`of an appearance scheduled for September 16, 2022, at 10:00 a.m. In consideration of the Covid-19
`
`Pandemic, and the City and State restrictions in place as a result, the Examination Under Oath was
`
`to be held by video conference via the internet. Said notification letter was sent to TOLENTINO at
`
`402 Larkspur Loop, Lancaster, PA 17602 as well as emailed to him at sergiomacoris@yahoo.com.
`
`TOLENTINO failed to appear on September 16, 2022, and a statement was placed on the record
`
`documenting his failure to appear. His Examination Under Oath was subsequently rescheduled to
`
`be held on October 7, 2022.
`
`31.
`
`Letters were sent to TOLENTINO on September 19, 2022, in both English and
`
`Spanish notifying him of an appearance scheduled for October 7, 2022 at 10:00 a.m. In
`
`consideration of the Covid-19 Pandemic, and the City and State restrictions in place as a result, the
`
`Examination Under Oath was to be held by video conference via the internet. Said notification
`
`letters were sent to TOLENTINO at 402 Larkspur Loop, Lancaster, PA 17602; 305 W. 28th Street,
`
`Apt. 19F, New York, New York 10001 and 1562 Townsend Avenue, Apt. 4B, Bronx, New York
`
`10452 as well as emailed to him at sergiomacoris@yahoo.com.
`
`32.
`
`At 9:38 a.m. on October 7, 2022, TOLENTINO called to advise that he would not
`
`be appearing at the EUO as he was in the process of retaining counsel and would not appear
`
`without an attorney present. He was advised to provide his attorney information asap when retained.
`
`A statement was placed on the record documenting these events and his Examination Under Oath
`
`was rescheduled to be held on October 31, 2022.
`
`33.
`
`Letters were sent to TOLENTINO on October 10, 2022, in both English and
`
`Spanish notifying him of an appearance scheduled for October 31, 2022 at 10:00 a.m. In
`
`consideration of the Covid-19 Pandemic, and the City and State restrictions in place as a result, the
`
`Examination Under Oath was to be held by video conference via the internet. Said notification
`
`letters were sent to TOLENTINO at 402 Larkspur Loop, Lancaster, PA 17602; 305 W. 28th Street,
`
`
`
`9 of 18
`
`

`

`
`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
`
`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`Apt. 19F, New York, New York 10001 and 1562 Townsend Avenue, Apt. 4B, Bronx, New York
`
`10452 as well as emailed to him at sergiomacoris@yahoo.com. TOLENTINO failed to appear on
`
`October 31, 2022, and a statement was placed on the record documenting his failure to appear.
`
`34.
`
`Had the policy been issued in New York, New York and/or Bronx, New York as
`
`opposed to Lancaster, Pennsylvania the difference in policy premium payments would have been
`
`substantially higher.
`
`APPLICABLE LAW
`
`35.
`
`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.
`
`36.
`
`Plaintiffs are entitled to defend any No-Fault claim, regardless of initial denial,
`
`whenever there is a “lack of coverage defense premised on the fact or founded belief that the alleged
`
`injury does not arise out of an insured incident.” Cen Gen Hosp. v. Chubb Ins., 90 N.Y.2d 195
`
`(1997); Zappone v. Home Ins., 55 N.Y.2d 131 (1982); Albert Schiff Assoc. v. Flack, 51 N.Y.2d 692
`
`(1980); Metro Med. v. Eagle Ins. Co., 293, A.D.2d 751 (2d Dep’t 2002).
`
`37.
`
`Under the policy claimants are obligated to appear for Examinations Under Oath
`
`(“EUO”) to substantiate their claim. This policy clause is in accordance with the applicable New
`
`York law.
`
`38.
`
`Each bill submitted by the Medical Provider Defendants for reimbursement to
`
`Plaintiffs is also governed by New York State Regulation 68A, NYCRR § 65-1.1, Conditions,
`
`Actions Against Company and Proof of Claim, which states that an insurer like the Plaintiffs 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;
`
`
`
`10 of 18
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`

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`FILED: NEW YORK COUNTY CLERK 09/27/2023 12:24 PMFILED: NEW YORK COUNTY CLERK 03/28/2024 11:08 AM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 12
`
`
`
`INDEX NO. 654739/2023INDEX NO. 654739/2023
`
`
`
`RECEIVED NYSCEF: 09/27/2023RECEIVED NYSCEF: 03/28/2024
`
`
`
`
`
`(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
`
`(d) provide any other pertinent information that may assist the Company in
`determining the amount due and payable.”
`
`39.
`
`Coverage cannot be created after an occurrence. It must exist originally or it does not
`
`exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 712 N.Y.S2d 433
`
`(2000); CGU Ins v. Guadagno, 280 A.D.2d 509, 720 N.Y.S2d 201 (2d Dep’t 2001).
`
`40.
`
`The Individual Defendant must complete the condition precedent to effect coverage.
`
`Such is never more in play when a claimant fails to appear for a requested Independent Medical
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`Examination (“IME”) or as in this instance, the requested EUO. In Unitrin Advantage Ins. Co. v.
`
`Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1st Dept, 2011), the Appellate
`
`Division, First Department held;
`
`“The failure to appear for IMEs requested by the insurer “when, and as often as, [it]
`may reasonably require” (Insurance Department Regulations [11 NYCRR] § 65–1.1)
`is a breach of a condition precedent to coverage under the No–Fault policy, and
`therefore fits squarely within the exception to the preclusion doctrine, as set forth in
`Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681
`N.E.2d 413 [1997]. Accordingly, when defendants’ assignors failed to appear for the
`requested IMEs, plaintiff had the right to deny all claims retroactively to the date of
`loss, regardless of whether the denials were timely issued ( see Insurance Department
`Regulations [11 NYCRR] § 65–3.8 [c]; Fogel, 35 A.D.3d at 721–22, 827 N.Y.S.2d
`217).”
`
`
`
`
`
`
`
`
`
`
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`Unitrin Advantage, at 1
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`There is no doubt that the requirement for an appearance at the EUO also would have a similar
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`result as in Unitrin. In Crotona Heights Medical, P.C. v. Farm Family Cas. Ins. Co. 27 Misc.3d
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`134(A), 910 N.Y.S.2d 404 N.Y.Sup.App.Term, 2010, 2nd, 11th and 13th Judicial Districts, the court
`
`held;
`
`“The appearance of the eligible injured person’s assignee at an EUO upon a proper
`request is a condition precedent to the insurer’s liability on the policy ( see Insurance
`Department Regulations [11 NYCRR] § 65–1.1; Stephen Fogel Psychological, P.C., 35
`AD3d at 722; W & Z Acupuncture, P.C., 24 Misc.3d 142[A], 2009 N.Y. Slip Op
`51732[U] ).”
`Crotona Heights Medical, P.C., at 134
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`41.
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`Additionally, it is well settled law that material misrepresentation made at the time an
`
`insurance policy is procured may lead to a policy being rescinded and/or avoided. See Syncora
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`Guarantee Inc. v. Countrywide Home Loans, Inc., 935 N.Y.S.2d 858 (N.Y. Sup., 2012); Carpinone
`
`v. Mutual of Omaha Ins. Co., 697 N.Y.S.2d 381 (N.Y.App.Div.3.Dept., 1999).
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`42.
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`Indeed, the Courts have ruled that misrepresentation of an insured policy address is
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`material and precludes an insured from recovery of benefits. To be sure, in AA Acupuncture
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`Service, P.C. v. Safeco Ins. Co. of America, 887 N.Y.S.2d 739 (N.Y.Sup., 2009), the court noted that
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`the insured, by misrepresenting his place of residence and the location where the insured vehicle
`
`would be garaged, the insured “intentionally misrepresented his address in order to obtain insurance
`
`at reduced premiums, precluding recovery of benefits, regardless of whether policy had actually been
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`cancelled; misrepresentation was material, since defendant would not have issued policy under same
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`terms had it known that insured resided in New York.” Id. at 31-32.
`
`43.
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`An assignee does not stand in a better position than his assignor. “He is subject to all
`
`the equities and burdens which attach to the property assigned because he receives no more and can
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`do no more than his assignor.” Int’l Ribbon Mills, Ltd. v. Arjan Ribbons, Inc., 36 N.Y.2d 121, 365
`
`N.Y.2d 808, 811 (1975); See also Abraham v. Hanover Ins. Co., 66 A.D.2d 808, 411 N.Y.S2d 355 (2d
`
`Dep’t 1978).
`
`44.
`
`Each and every one of the Medical Provider Defendants is an assignee of the
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`Individual Defendant.
`
`45.
`
`The difference in the premium for the policy written to the policyholder would have
`
`been higher if the true address had been listed on the policy. This amount is a material and
`
`substantial amount to Liberty Mutual, and TOLENTINO intentionally misled Liberty Mutual into
`
`believing that the vehicle was garaged in Pennsylvania and not New York. The Affidavit of the
`
`Underwriter regarding the policy premium difference is attached hereto as Exhibit “A”.
`
`46.
`
`Plaintiffs relied upon TOLENTINO’s intentional misrepresentation of his actual
`
`place of residence and of the actual garaging location for the insured vehicle and accordingly was
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`fraudulently induced to issue the subject policy to him consistent with the Lancaster, Pennsylvania
`
`geographical area versus the New York City or Bronx, New York geographical area.
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`47.
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`Plaintiffs would not have issued the subject policy to TOLENTINO at the subject
`
`policy’s premium rate using the Lancaster, Pennsylvania address had Plaintiffs known he actually
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`lived and garaged the insured vehicle at the New York City or Bronx, New York address.
`
`48.
`
`Plaintiffs timely denied all bills submitted by the Medical Provider Defendants as
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`assignees of TOLENTINO based on the aforementioned misrepresentations and the non-
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`compliance with Plaintiffs’ request for an EUO which constitutes a lack of cooperation with the
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`duties of an insured under the policy.
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`49. Where an insured is a participant in the fraudulent issuance of an insurance policy,
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`that fraud precludes recovery by that insured and, by extension, his or her assignees. See, e.g., Matter
`
`of Ins. Co. of N. Am. v. Kaplun, 274 A.D.2d 293, 298-99 (2d Dep’t 2000); DiDonna v. State Far Mut.
`
`Auto. Ins. Co., 259 A.D.2d 727, 728 (2d Dep’t 1999); see also, NY Insurance Law § 3105; see also
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`American States Ins. Co. v. Huff, 1119 A.D.3d 478, 479 (1st Dep’t 2014).
`
`50.
`
`TOLENTINO knowingly and intentionally misrepresented the policy address when
`
`applying for insurance with Liberty Mutual in order to secure a lower premium and failed to
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`cooperate with his duties under the policy to cooperate in the investigation of the facts and
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`circumstances surrounding the accident.
`
`51.
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`Furthermore, the subject policy’s cooperation clause creates an obligation on the
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`insured to provide correct information. See Federated Dept. Stores, Inc. v. Twin City Fire Ins. Co.,
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`28 A.D.3d 32, 37 (1st Dep’t 2006). False statements regarding the facts and circumstances of a loss
`
`that is the subject of a claim for insurance benefits constitutes lack of cooperation with a claims
`
`investigation and a consequent breach of a policy’s cooperation clause. See, e.g., Greater N.Y. Mut.
`
`Ins. Co. v. Utica First Ins. Co., 172 A.D.3d 588, 590 (1st Dep’t 2019) (citing Nationwide Mut. Ins.
`
`Co. v. Posa, 56 A.D.3d 1143, 1144 (4th Dep’t 2008)).
`
`52.
`
`False statements regarding the garaging of the insured vehicle and failure to
`
`cooperate with an EUO are breaches of a claimant’s duty to cooperate with an insurance carrier’s
`
`claims investigation - a duty which is memorialized in the subject automobile insurance policy with
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`Plaintiffs under Part E - Duties After Loss, Section B. To wit: A person seeking any coverage must:
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`Cooperate with us in the investigation, settlement or defense of any claim or suit.
`...
`Submit, as often as we reasonably require:
`...
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`to examination under oath and subscribe the same.
`Authorize us to obtain:
`other pertinent records.
`Submit a proof of loss when required by us.
`
`
`53.
`
`As indicated above, the premium for the policy written to TOLENTINO would
`
`have been higher if his true residence in New York City or the Bronx, New York had been used.
`
`This amount is a material and substantial amount to Liberty Mutual, and TOLENTINO
`
`intentionally misled Liberty Mutual into believing that he lived in Lancaster, Pennsylvania to obtain a
`
`lower premium rate.
`
`54.
`
`Liberty Mutual relied upon these false representations by TOLENTINO as to his
`
`residency to its detriment by being fraudulently induced to receive a lower premium than Liberty
`
`Mutual would have otherwise agreed to had Liberty Mutual known they provided it with a
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`fraudulent garaging address.
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`55.
`
`Based on the foregoing, Individual Defendant TOLENTINO is in breach of the
`
`policy with Plaintiffs due to his material misrepresentations regarding the garaging location of the
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`insured vehicle and his consequent non-cooperation with Plaintiffs’ claims investigation.
`
`AS AND FOR A FIRST CAUSE OF ACTION
`
`56.
`
`Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
`
`in this Complaint with the same force and effect as if set forth fully herein.
`
`57.
`
` Liberty Mutual is not obligated to pay any bills, whether submitted prior to or after
`
`the requested Examinations under Oath based on the material misrepresentation of Individual
`
`Defendant TOLENTINO as to the garaging of the vehicle and the policy address as well as
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`TOLENTINO’s failure to attend his Examination under Oath.
`
`58.
`
`59.
`
` Liberty Mutual was within its rights to deny all claims retroactive to the date of loss.
`
` Liberty Mutual is therefore entitled to a Permanent Injunction barring all the
`
`pending litigation and arbitrations between the parties from proceeding based on the proper denials
`
`it has issued.
`
`60.
`
`Liberty Mutual has no other adequate remedy at law.
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`AS AND FOR A SECOND CAUSE OF ACTION
`
`61.
`
`Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
`
`in this Complaint with the same force and effect as if set forth fully herein.
`
`62.
`
` Several Medical Provider Defendants have commenced litigation and arbitration
`
`proceedings against Liberty Mutual seeking no fault reimbursement for the claims stemming from
`
`the occurrence.
`
`63.
`
` Liberty Mutual is entitled to a permanent stay of all the pending litigation and
`
`arbitrations based on the proper denials it has issued.
`
`64.
`
`Liberty Mutual has no other adequate remedy at law.
`
`AS AND FOR A THIRD CAUSE OF ACTION
`
`65.
`
`Plaintiffs repeat, reiterate and re-allege the heretofore mentioned allegations set forth
`
`in this Complaint with the same force and effect as if set forth fully herein.
`
`66.
`
`Liberty Mutual was within its rights to deny all claims retroactive to the date of loss
`
`based on the material misrepresentations of Individual Defendant TOLENTINO with regards to
`
`the policy address and once Individual Defendant TOLENTINO failed to appear for the requested
`
`EUOs.
`
`67.
`
`Liberty Mutual is therefore entitled to a Declaration that the Medical Provider
`
`Defendants are barred from submi