FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`SUMMONS
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`Index #:
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`Plaintiffs designate New York
`County as the place of trial
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`_____________________________________________
`LIBERTY MUTUAL INSURANCE COMPANY and
`LIBERTY MUTUAL PERSONAL INSURANCE COMPANY
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` Plaintiffs,
`--against--
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`WYNONA WEST
`
` Individual Defendant,
`and
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`APEX DIAGNOSTICS INC
`APP SUPPLY INC
`BETTER SOON RX INC
`ETZEM DIAGNOSTICS INC
`H LEVITAN MEDICAL PC
`NEW SENSE ACUPUNCTURE PC
`RAIA MEDICAL SERVICES PC
`S&K WARBASSE PHARMACY INC
`SEONGEUN KIM PHYSICAL THERAPY PC
`STAND-UP MRI OF THE BRONX PC
`
` Medical Provider Defendants,
` Collectively, The Defendants.
`_____________________________________________
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`TO THE ABOVE-NAMED DEFENDANT(S):
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`YOU ARE HEREBY SUMMONED to answer the Complaint of the Plaintiffs, a copy of
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`which is hereby served upon you, and to serve copies of your answers upon the undersigned within
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`twenty (20) days after service upon you of the Summons and Complaint, exclusive of the day of
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`service (or within 30 days after the service is complete if this summons and complaint is not
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`personally delivered to you within the State of New York). In the event you fail to answer the
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`Plaintiffs’ Complaint, judgment will be taken against you by default for the relief demanded in the
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`Complaint.
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`1 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`Dated: White Plains, New York
`December 26, 2023
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`Yours etc.,
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`By:_______________________
`Asher Grossman, Esq.
`CORREIA, CONWAY & STIEFELD
`Attorneys for Plaintiffs
`LIBERTY MUTUAL INSURANCE
`COMPANY, ET AL
`Mailing Address:
`PO Box 6835
`Scranton, PA 18505-6840
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`Physical Address:
`10 Bank Street, Suite 1200
`White Plains, NY 10606-1947
`(914) 997-8100
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`2 of 18
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`TO:
`WYNONA WEST
`774 E. 225th Street, Apt. 21
`Bronx, NY 10466
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`APEX DIAGNOSTICS INC
`1825 Coney Island Ave., Fl. 2
`Brooklyn, NY 11230
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`APP SUPPLY INC
`1701 Avenue P, Ste. L
`Brooklyn, NY 11229
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`BETTER SOON RX INC
`5410 Flushing Ave.
`Maspeth, NY 11378
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`ETZEM DIAGNOSTICS INC
`73 Market Street, 3rd Fl.
`Yonkers, NY 10710
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` H
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` LEVITAN MEDICAL PC
`301 E. 79th Street, Apt. 37P
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`

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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`New York, NY 10075
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`NEW SENSE ACUPUNCTURE PC
`21974 A 64th Ave.
`Bayside, NY 11364-2246
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`RAIA MEDICAL SERVICES PC
`3381 Milburn Ave.
`Baldwin, NY 11510
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`S&K WARBASSE PHARMACY INC
`499 Neptune Ave.
`Brooklyn, NY 11224
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`SEONGEUN KIM PHYSICAL THERAPY PC
`76-14 Woodside Ave., 2nd Fl.
`Elmhurst, NY 11373
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`STAND-UP MRI OF THE BRONX PC
`2050 Eastchester Rd., #1B
`Bronx, NY 10461
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`3 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`VERIFIED COMPLAINT
` Index No.:
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`_____________________________________________
`LIBERTY MUTUAL INSURANCE COMPANY and
`LIBERTY MUTUAL PERSONAL INSURANCE
`COMPANY
`
` Plaintiffs,
`--against--
`
`WYNONA WEST
`
` Individual Defendant,
`and
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`APEX DIAGNOSTICS INC
`APP SUPPLY INC
`BETTER SOON RX INC
`ETZEM DIAGNOSTICS INC
`H LEVITAN MEDICAL PC
`NEW SENSE ACUPUNCTURE PC
`RAIA MEDICAL SERVICES PC
`S&K WARBASSE PHARMACY INC
`SEONGEUN KIM PHYSICAL THERAPY PC
`STAND-UP MRI OF THE BRONX PC
`
` Medical Provider Defendants,
` Collectively, The Defendants.
`_____________________________________________
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`Plaintiffs, LIBERTY MUTUAL INSURANCE COMPANY and LIBERTY MUTUAL
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`PERSONAL INSURANCE COMPANY (hereinafter “Plaintiffs” or “Liberty Mutual”), by and
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`through its attorneys, Law Office of Correia, Conway & Stiefeld, as set forth in their Verified
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`Complaint in this action, hereby allege, upon information and belief, as follows:
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`Introduction
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`This is an action for a declaratory judgment pursuant to CPLR §3017(b) defining and
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`declaring the rights, duties, obligations, and legal relationships by and between the Plaintiffs and the
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`above-named Defendants.
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`1.
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`This action stems from claims by the Individual and Medical Provider Defendants
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`seeking reimbursement for bills submitted to the Plaintiffs under New York’s No-Fault laws. This
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`action seeks a Preliminary Injunction barring the Defendants from seeking any No-Fault
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`reimbursement in connection with all claims brought out of the alleged motor vehicle accident
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`4 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`involving the Individual Defendant as detailed hereinafter; a Stay of all pending litigation and/or
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`arbitrations now brought by the Defendants involving these claims that exist in the Civil Courts of
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`the City of New York, other Courts in the State of New York or arbitrations administered through
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`the American Arbitration Association; a Declaration prohibiting the Defendants from further
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`submitting bills to Plaintiffs for No-Fault reimbursement connected with this claim or from
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`commencing new litigation; and an overall Declaration from the Court affirming that the denials of
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`all claims for No-Fault benefits by the Plaintiffs were proper.
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`Jurisdiction And Venue
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`2.
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`This court has personal jurisdiction over this matter under CPLR §§301, 302(a)(1),
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`and 302(a)(3).
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`3.
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`Venue is proper in New York County based on Plaintiffs transacting business in
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`New York County by virtue of selling policies of automobile insurance to residents of New York
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`County.
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`Parties
`Plaintiffs
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`Collectively, the Plaintiffs are insurance companies under the Liberty Mutual
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`4.
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`umbrella that are authorized to write insurance policies in New York State.
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`5.
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`Plaintiff, Liberty Mutual Personal Insurance Company, is a Liberty Mutual
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`Company, a Massachusetts corporation with a principal place of business at 175 Berkeley Street,
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`Boston, Massachusetts 02116.
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`6.
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`Liberty Mutual is authorized to write insurance policies in New York State and
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`Liberty Mutual transacts business in all counties of the State of New York.
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`7.
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`8.
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`Plaintiffs wrote an insurance policy issued to Individual Defendant Wynona West.
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`Defendants
`Individual Defendants
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`Upon information and belief, Defendant Wynona West (hereinafter, “West”) is an
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`individual residing in the State of New York at 774 E. 225th Street, Apt. 21, Bronx, NY 10466.
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`Medical Provider Defendants
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`9. Upon information and belief, Defendant APEX DIAGNOSTICS INC is a domestic
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`business corporation, which is transacting or has transacted business in the State of New York at
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`1825 Coney Island Ave., Fl. 2, Brooklyn, NY 11230.
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`5 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`10. Upon information and belief, Defendant APP SUPPLY INC is a domestic business
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`corporation, which is transacting or has transacted business in the State of New York at c/o Anton
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`Panamarenko, 1701 Avenue P, Ste. L, Brooklyn, NY 11229.
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`11. Upon information and belief, Defendant BETTER SOON RX INC is a domestic
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`business corporation, which is transacting or has transacted business in the State of New York at
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`c/o Deni Yakubov, 5410 Flushing Ave., Maspeth, NY 11378.
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`12. Upon information and belief, Defendant ETZEM DIAGNOSTICS INC is a domestic
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`business corporation, which is transacting or has transacted business in the State of New York at 73
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`Market Street, 3rd Fl., Yonkers, NY 10710.
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`13. Upon information and belief, Defendant H LEVITAN MEDICAL PC is a domestic
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`professional corporation, which is transacting or has transacted business in the State of New York at
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`301 E. 79th Street, Apt. 37P, New York, NY 10075.
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`14. Upon information and belief, Defendant NEW SENSE ACUPUNCTURE PC is a
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`domestic professional corporation, which is transacting or has transacted business in the State of
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`New York at 21974 A 64th Ave., Bayside, NY 11364-2246.
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`15. Upon information and belief, Defendant RAIA MEDICAL SERVICES PC is a
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`domestic professional corporation, which is transacting or has transacted business in the State of
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`New York at 3381 Milburn Ave., Baldwin, NY 11510.
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`16. Upon information and belief, Defendant S&K WARBASSE PHARMACY INC is a
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`domestic business corporation, which is transacting or has transacted business in the State of New
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`York at 499 Neptune Ave., Brooklyn, NY 11224.
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`17. Upon information and belief, Defendant SEONGEUN KIM PHYSICAL THERAPY
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`PC is a domestic professional corporation, which is transacting or has transacted business in the
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`State of New York at 76-14 Woodside Ave., 2nd Fl., Elmhurst, NY 11373.
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`18. Upon information and belief, Defendant STAND-UP MRI OF THE BRONX PC is a
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`domestic professional corporation, which is transacting or has transacted business in the State of
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`New York at 2050 Eastchester Rd., #1B, Bronx, NY 10461.
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`Factual Background
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`19.
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`This action arises out of claims for No-Fault reimbursement stemming from a motor
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`vehicle accident involving Individual Defendant West on December 22, 2022 (hereinafter, “the
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`occurrence” or “the accident”), wherein an alleged collision occurred between the insured 2022
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`Nissan Altima operated by West and a vehicle operated by Keyon Frett.
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`6 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`20.
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`The policy in question was issued to West under policy number AOV23194620245,
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`effective June 22, 2022 through June 22, 2023, with limits of No-Fault medical bill coverage of
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`$50,000 per person. (“the policy”).
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`21.
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`Individual Defendant West secured the policy using the address of 1284 Redd Shop
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`Rd., Farmville, VA 23901-8248.
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`22.
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`An Examination under Oath (“EUO”) of West was held on January 27, 2023. She
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`provided testimony that showed the vehicle was not garaged at the policy address and that she
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`actually resided and garaged the vehicle in Bronx, NY.
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`23.
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`Individual Defendant West misrepresented her residence to procure the motor
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`vehicle insurance policy with Plaintiffs.
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`24.
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`Individual Defendant West misrepresented her residence to procure the motor
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`vehicle insurance policy with Plaintiffs using the Farmville, VA address in order to secure a lower
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`insurance rate.
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`25.
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`Upon information and belief, the premium charged for the Bronx, NY address
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`would be materially different than that charged had the insured listed her true address in Bronx, NY
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`on the policy application.
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`26.
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`Plaintiffs’ Underwriting Department attempted to requote the policy for the Bronx,
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`NY address and the quote rejected due to driving record and/or claims history; it did not meet the
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`company’s underwriting standard. If approval was able to be obtained, the annual premium would
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`increase from $1,924 to $17,749.
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`27.
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`According to the Report of Motor Vehicle Accident (hereinafter, “MV-104”), the
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`accident occurred at the intersection of Givan and Wilson Streets in Bronx. West stated she was
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`stopped at a stop sign, looked both ways and no cars were coming, and a car came speeding down
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`the street in the rain and she said she braked, but it was too late to stop.
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`28.
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`Following the accident, the Individual Defendant sought medical treatment for her
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`alleged injuries.
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`29.
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`The Medical Provider Defendants then submitted bills on assignment from the
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`Individual Defendants to the Plaintiffs seeking No-Fault and bodily injury reimbursement under
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`policy number LA275-051958354-0001.
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`30.
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`The following Medical Provider Defendants submitted bills for West:
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`All Billing for Wynona West
`APEX DIAGNOSTICS INC
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`$762.09
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`7 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`APP SUPPLY, INC
`BETTER SOON RX INC
`ETZEM DIAGNOSTICS INC
`H LEVITAN MEDICAL PC
`NEW SENSE ACUPUNCTURE PC
`RAIA MEDICAL SERVICES PC
`S&K WARBASSE PHARMACY
`SEONGEUN KIM PHYSICAL THERAPY
`STAND-UP MRI OF THE BRONX
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`TOTAL
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`$6,853.83
`$1,902.50
`$1,151.19
`$469.99
`$630.09
`$662.35
`$5,465.58
`$929.70
`$5,378.51
`$24,205.83
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`31.
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`32.
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`The total medical billing under the claim to date is $24,205.83.
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`The No-Fault reimbursement laws of the State of New York call for the swift
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`payment of medical bills by the insurer of the vehicle involved in the motor vehicle accident but
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`permit the insurer to disallow payments for those not medically necessary, those medical bills for
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`treatment unrelated to the accident, or those for which there is no coverage. Further, it allows
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`providers to conduct reasonable investigation and require Examinations Under Oath (hereinafter,
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`“EUO”) of the parties to determine the legitimacy of the claims.
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`33.
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`On December 29, 2022, Plaintiffs sent a reservation of rights letter to West
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`requesting additional verification of her claim in the form of documents and an EUO.
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`34.
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`The Individual Defendant submitted an Application for No-Fault Benefits
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`(hereinafter, “NF-2”), which Plaintiffs received on or about January 10, 2023.
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`35.
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`Following the initial submission of the bills by the Medical Provider Defendants,
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`Plaintiffs began an investigation to verify whether West made a material misrepresentation of the
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`address on her policy of insurance with Plaintiffs and, thus, whether she was entitled to No-Fault
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`benefits. West secured the policy using an address of 1284 Redd Shop Road, Farmville, VA 23901-
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`8248. However, there was evidence to suggest that West actually resided and garaged the insured
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`vehicle at 774 E. 225th Street, Apt. 21, Bronx, NY 10466.
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`36.
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`An Accurint report was run and associated West with 774 E 225th Street, Apt 21,
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`Bronx, NY from October 2017 through October 2022 and 1284 Redd Shop Rd., Farmville VA from
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`February 2005 to December 2022.
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`37. West was also involved in a prior motor vehicle accident on April 4, 2022, on the
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`Bronx River Parkway in New York.
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`8 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`38.
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`A ticket/parking violation search was run on the insured vehicle and indicated
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`violations were issued on June 29, 2022 (no parking, Manhattan, NY); August 8, 2022 (school zone
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`speed, Bronx, NY), and September 5, 2022 (school zone speed, Bronx, NY).
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`39.
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`On January 5, 2023, a visit was made to 774 E 225th Street, Apt 2I, Bronx NY, for
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`the purpose of a residency check. The residence is a large apartment building with multiple
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`apartments in a busy neighborhood. Upon entering the building, the name Wynona West, was not
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`located anywhere on the exterior or interior of the building. The name Reid E., L was listed on the
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`directory for apartment 2I. A visit was made to 770 E 225th street, Apt 1H, Bronx NY, and
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`contact was made with the superintendent, Angel, who stated he was not sure who resided at 774 E
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`225th Street, Apt 2I Bronx NY and directed contact be made with management. Meanwhile, at 774
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`E 225th Street, Apt 2I Bronx NY, contact was made with an African American female, Wynona
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`West, who stated that she was not attorney represented. She advised she was visiting her cousin
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`Annette West when the accident occurred in Bronx, NY. Annette West resides at 774 E 225th
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`Street, Apt 2I, Bronx NY. She stated that she is staying with her because of her treatment in Pelham,
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`NY. A follow-up call was placed to management and contact was made with Vinny who stated
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`Devonne West is currently on the lease.
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`40.
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`On January 22, 2023, a visit was made to 1284 Redd Shop Road in Farmville, VA.
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`Upon arrival, there was no answer at the door. A front porch light was illuminated. A red Ford
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`truck, with Virginia tag UXM-5194, was present at the residence and had been observed there
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`during two previous attempts. No Trespassing and Private Property signs were seen throughout the
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`front of the property. Contact was made with an African American female carrying groceries into a
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`beige trailer with an unknown address south of 1284 Redd Shop Road. She said she does not know
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`anything about anyone residing at 1284 Redd Shop Road and has never seen a newer car at the
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`residence. She referenced the No Trespassing signs at the front of the property and said the signs
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`should be respected and paid attention to.
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`41.
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`42.
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`To verify the residency/garaging concerns, an EUO of West was requested.
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`Plaintiffs sent letters to West on January 9, 2023, scheduling her EUO for January
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`27, 2023, at 10:00 a.m. The letters were sent to West at 1284 Red Shop Road, Farmville, VA 23901
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`and 774 E. 225th Street, Apt. 2I, Bronx, NY 10466 and by e-mail to wynonawest@gmail.com.
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`43.
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`Shortly thereafter, Plaintiffs sent delay letters to the Medical Provider Defendants
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`who submitted NF-3s or bills to date, stating the reason for the delay was “we haven’t yet received
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`all necessary information to complete our investigation, which may include a recorded interview,
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`9 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`signed statement, and/or Examination under Oath of the patient. Additional documentation may
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`be requested at the time of the Examination under Oath.”
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`44.
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`On January 27, 2023, West appeared for her scheduled EUO and testified as follows:
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`• She provided her residential address as the Farmville, VA address.
`• The 774 East 225th Street, Bronx, NY residence is an apartment West rents on a
`monthly basis. She signed a lease for the apartment in October 2022 and has been
`renting the apartment for several years prior. Her cousin sometimes also lives in the
`apartment when she is not there. She confirmed her middle name is Devonne.
`• On the day of the accident, she was driving her car, a 2022 gray Nissan Altima,
`which she purchased in New York in April 2022. She registered the car in Virginia in
`the summer of 2022.
`• The loss occurred at the intersection of Wilson and Givan in the Bronx. During the
`time the car was repaired, she had a rental car that she rented in New York. She
`drove the rental car to Virginia on December 26, 2022, and returned to New York
`on January 2, 2022.
`• Since January 2, 2023, as well as prior to the loss, she has been staying and living at
`774 East 225th Street, Bronx NY.
`• Since the loss she has been working between two to four days per week as a
`substitute teacher in New York City. In addition to working as a per diem substitute
`teacher, she also works as a front desk clerk at the Art House, a hotel in Manhattan.
`She works three to four days per week, during busy seasons.
`In April 2022, West was involved in a separate automobile accident. She has not
`been able to travel since that accident and has been staying in New York
`permanently since April 2022. She was seeing doctors for treatment for several
`months.
`• She returned to her residence in Virginia on only one occasion prior to the loss, in
`the summer of 2022, so that she could register her Altima in Virginia.
`• She has a Virginia driver's license.
`• She said that she grew up in the Farmville, VA residence. The house belongs to her
`grandmother, who still lives at the house. She said she is responsible for the property
`tax at the house. She said the house will be hers since it will be given to her in her
`grandmother's will.
`• She said she has her bank accounts associated with the Virginia address. She stated
`that her phone is also billed in her name at the Virginia address.
`• On the date of the loss, December 22, 2022, she was driving from a restaurant
`known as Vybes Kitchen on Gun Hill Road in the Bronx and was on her way to her
`apartment in the Bronx.
`• She keeps her car parked outside her apartment in the Bronx and does not plan to
`leave New York City anytime in the near future.
`
`•
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`
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`45.
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`Following the investigation of this matter and the sworn testimony provided by West
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`at her EUO, timely denials were subsequently issued for her claims on the basis:
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`10 of 18
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`FILED: NEW YORK COUNTY CLERK 12/26/2023 03:20 PM
`NYSCEF DOC. NO. 1
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`INDEX NO. 656469/2023
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`RECEIVED NYSCEF: 12/26/2023
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`We have determined that the allegations of the claim do not create a potential of first-party
`coverage under the policy. As a result, we will not investigate, settle, or otherwise handle this
`matter on behalf of WYNONA WEST. Our information indicates that you misrepresented
`the location of your residence and the location where the insured vehicle would be garaged.
`Specifically, you stated that you live at and garage the insured vehicle at the Virginia address
`when you actually live at and garage the vehicle at the New York address. Accordingly,
`Liberty Mutual is disclaiming any claims for first-party coverage due to material
`misrepresentations on your policy application.
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`Applicable Law
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`The No-Fault reimbursement laws of the State of New York call for the swift
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`46.
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`payment of medical bills by the insurer of the vehicle involved in the motor vehicle accident but
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`permit the insurer to disallow payments for those not medically necessary, those medical bills for
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`treatment unrelated to the accident, or those for which there is no coverage. Further, it allows
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`providers to conduct reasonable investigation and require Examinations under Oath of the parties to
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`determine the legitimacy of the claims.
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`47.
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`It is well settled law that material misrepresentation made at the time an insurance
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`policy is procured may lead to a policy being rescinded and/or avoided. See Syncora Guarantee Inc.
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`v. Countrywide Home Loans, Inc., 935 N.Y.S.2d 858 (N.Y. Sup., 2012); Carpinone v. Mutual of
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`Omaha Ins. Co., 697 N.Y.S.2d 381 (N.Y.App.Div.3.Dept., 1999).
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`48.
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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
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`would be garaged, the insured “intentionally misrepresented his address in order to obtain insurance
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`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.
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`49.
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`An assignee does not stand in a better position than his assignor. “He is subject to all
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`the equities and burdens which attach to the property assigned because he receives no more and
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`can do no more than his assignor.” Int’l Ribbon Mills, Ltd. v. Arjan Ribbons, Inc., 36 N.Y.2d 121,
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`126, 325 N.E.2d 137, 139, 365 N.Y.2d 808,811 (1975); See also Abraham v. Hanover Ins. Co., 66
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`A.D.2d 808, 411 N.Y.S2d 355 (2d Dep’t 1978).
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`50.
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`The premium for the policy written to the policyholder would have been higher if
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`the true address had been listed on the policy. This amount is a material and substantial amount to
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`Plaintiffs and West intentionally misled Plaintiffs into believing that the vehicle was garaged in
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`Farmville, VA and not Bronx, NY. The Affidavit of the Underwriter regarding the policy premium
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`difference is attached hereto as Exhibit “A”.
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`51.
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`Plaintiffs relied upon West’s intentional misrepresentation of her actual place of
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`residence and of the actual garaging location for the insured vehicle and accordingly was fraudulently
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`induced to issue the subject policy to her consistent with the Farmville, VA geographical area versus
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`the Bronx, NY geographical area.
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`52.
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`Plaintiffs would not have issued the subject policy to West at the subject policy’s
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`premium rate using the Farmville, VA address had Plaintiffs known she actually lived and garaged
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`the insured vehicle at the Bronx, NY address.
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`53.
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`Plaintiffs timely denied all bills submitted by the Medical Provider Defendants as
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`assignees of West based on the aforementioned misrepresentations, which constitutes a lack of
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`cooperation with the duties of an insured under the policy.
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`54.
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`Under the policy, claimants are obligated to appear for Examinations Under Oath to
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`substantiate their claim. This policy clause is in accordance with the applicable New York law.
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`55.
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`Each bill submitted by Defendants for reimbursement to Plaintiffs is also governed
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`by New York State Regulation 68A, NYCRR §65-1.1, Conditions, Actions Against Company and
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`Proof of Claim, which states that an insurer like the Plaintiffs may require any insured making a
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`claim under the policy to provide information regarding the legitimacy of the claim in a reasonable
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`manner and that:
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`No action shall lie against the Company unless, as a condition precedent thereto,
`there shall have been full compliance with the terms of this coverage
`
`
`…
`Upon request by the Company, the eligible injured person or that person’s
`assignee or representative shall:
`(a) execute a written proof of claim under oath;
`(b) as may reasonably be required submit to examinations under oath by any
`person named by the Company and subscribe the same;
`(c) provide authorization that will enable the Company to obtain medical
`records; and
`(d) provide any other pertinent information that may assist the Company in
`determining the amount due and payable.
`
`
`56.
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`Coverage cannot be created after an occurrence. It must exist originally, or it does
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`not exist at all. See Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 712 N.Y.S2d 433
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`(2000); CGU Ins v. Guadagno, 280 A.D.2d 509, 720 N.Y.S2d 201 (2d Dep’t 2001).
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`57.
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`Each and every one of the Medical Provider Defendants is an assignee of the
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`Individual No-Fault Defendant.
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`58. 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
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`of Ins. Co. of N. Am. v. Kaplun, 274 A.D.2d 293, 298-99 (2d Dep’t 2000); DiDonna v. State Far Mut.
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`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).
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`59. West knowingly and intentionally misrepresented the policy address when applying
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`for insurance with Plaintiffs in order to secure a lower premium.
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`60.
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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
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`that is the subject of a claim for insurance benefits constitutes lack of cooperation with a claims
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`investigation and a consequent breach of a policy’s cooperation clause. See, e.g., Greater N.Y. Mut.
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`Ins. Co. v. Utica First Ins. Co., 172 A.D.3d 588, 590 (1st Dep’t 2019) (citing Nationwide Mut. Ins.
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`Co. v. Posa, 56 A.D.3d 1143, 1144 (4th Dep’t 2008)).
`
`61.
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`False statements regarding the garaging of the insured vehicle is a breach of a
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`claimant’s duty to cooperate with an insurance carrier’s claims investigation - a duty which is
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`memorialized in the subject automobile insurance policy with Plaintiffs under Part E - Duties After
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`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:
`...
`to examination under oath and subscribe the same.
`Authorize us to obtain:
`other pertinent records.
`Submit a proof of loss when required by us.
`
`62.
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`As indicated above, Plaintiffs would not have issued a policy to West based on the
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`Bronx, NY address because it did not meet underwriting standards. However, if the policy was able
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`to be issued, the premium for the policy written to West would have been significantly higher if her
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`true residence in Bronx, NY had been used. This amount is a material and substantial amount to
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`Plaintiffs, and West intentionally misled Plaintiffs into believing that she lived and garaged the
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`insured vehicle in Farmville, VA to obtain a lower premium rate.
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`63.
`
`Plaintiffs relied upon these false representations by West as to her residency and the
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`garaging location of the insured vehicle to its detriment by being fraudulently induced to receive a
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`lower premium than Plaintiffs would have otherwise agreed to had Plaintiffs known she had
`
`provided them with a fraudulent garaging address.
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`64.
`
`Based on the foregoing, Individual Defendant West is in breach of the policy with
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`Plaintiffs due to her material misrepresentations regarding the garaging location of the insured
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`vehicle and her consequent non-cooperation with Plaintiffs’ claims investigation.
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`AS AND FOR A FIRST CAUSE OF ACTION
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`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.
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`66.
`
`Plaintiffs are not obligated to pay any bills, whether submitted prior to or after the
`
`requested Examinations under Oath based on the material misrepresentation of the Individual
`
`Defendant as to the garaging of the vehicle and the policy address.
`
`67.
`
`68.
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`Plaintiffs are within their rights to deny all claims retroactive to the date of loss.
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`Plaintiffs are therefore entitled to a Declaration the Plaintiffs properly issued any and
`
`all denials relative to the claims of the Individual Defendant and are, thus, entitled to a Permanent
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`Injunction barring any suits between the parties from proceeding or being commenced seeking no-
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`fault reimbursement.
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`69.
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`Plaintiffs have no other adequate remedy at law.
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`
`
`
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`AS AND FOR A SECOND CAUSE OF ACTION
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`70.
`
`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.
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`71.
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`Several Medical Provider Defendants have commenced litigation and arbitration
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`proceedings against Plaintiffs seeking No-Fault reimbursement for the claims stemming from the
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`occurrence.
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`72.
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`Plaintiffs are entitled to a permanent stay of all the pending litigation and arbitrations
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`based on the proper denials it has issued.
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`73.
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`Plaintiffs have no other adequate remedy at law.
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`AS AND FOR A THIRD CAUSE OF ACTION
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`74.
`
`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.
`
`75.
`
`Plaintiffs are within their rights to deny all claims retroactive to the date of loss based
`
`on the material misrepresentations of the Individual Defendant with regard to her policy address.
`
`76.
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`Plaintiffs are therefore entitled to a Declaration that the Medical Provider
`
`Defendants are barred from submitting any new claims, or initiate litigation or arbitration
`
`proceedings based on their assignee’s material misrepresentations concerning her policy address.
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`AS AND FOR A FOURTH CAUSE OF ACTION
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`77.
`
`Plaintiffs repeat, reiterate, and re-allege the heretofore mentioned allegations set forth
`
`in this Complaint with the same force and effect as if s