Ace vs BioReference 8-2017

INDEX NO. 156911/2017
RECEIVED NYSCEF: 08/02/2017
FILED: NEW YORK COUNTY CLERK 08/02/2017 12:53 PM
NYSCEF DOC. NO. 1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
ACE AMERICAN INSURANCE COMPANY
Index No.:
Date of Filing:Plaintiff(s),
-against-
Plaintiff designates New York
County as place for trial.
SILVER NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL
THERAPY, P.C., COMPREHENSIVE INTERVENTIONAL
PAIN MANAGEMENT, P.C., E. AUGUST CHIROPRACTIC,
P.C., OSOS PSYCHOLOGICALSERVICES, PLLC, PRO-ALIGN
CHIROPRACTIC, P.C., NEW YORK MEDICAL &
DIAGNOSTIC CARE, P.C., ARDEN M. KAISMAN, M.D., P.C.,
PROGRESSIVE-HUDSON ANESTHESIA, LLC, AXIAL
CHIROPRACTIC, P.C., LENOX HILL RADIOLOGY AND
MEDICAL IMAGING ASSOCIATES, P.C., CENTRAL
QUEENS DAY SURGICAL CENTER, INC. a/k/a QUEENS
SURGI-CENTER, SURGICORE SURGICAL CENTER, LLC,
SPINE & ORTHOPAEDIC-REHABILITATION CENTER, P.C.,
MAR-AND MEDICALEQUIPMENT, INC., BIO-REFERENCE
LABORATORIES, INC., JOURNAL SQUARE SURGICAL
CENTER, L.L.C., ROXBURY ANESTHESIA, LLC, SIMON LEE,
M.D., F.A.A., P.M.R., STRAKER PSYCHOLOGY, P.C., FOREST
HILLS MEDICAL, P.C., JEAN-PIERRE GUILLOUX,
GENEVIEVE BAUDIN, ANNA LEWIS, MARIE PAULEUS and
OSCAR JEEF,
SUMMONS
The basis ofvenue is the
Primary NYS Residence of
ACE AMERICAN
INSURANCE COMPANY
Plaintiff's Address:
1133 Avenue of the Americas
New York, NY 10036
Defendant(s).
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To The Above Named Defendants:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a notice
of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons,
lusive of the day of service (or within 30 days after the service is complete if this summons
is not personally delivered to you within the State of New York); and in case of your failure
to appear or answer, judgment will be taken against you by default for the relief demanded
in the complaint.
DATED:
exc
New York, New York
August 1, 2017
RUBIN, FIORELLA & FRIEDMAN LLP
Attorneys for Plaintiff(s)
630 Third Avenue, 3rd Floor
New York, New York 10017
(212) 953-2381
Our File No.: 0297.32733
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DEFENDANTS' ADDRESSES:
SILVER NEEDLE ACUPUNCTURE, P.C.
52-48 70th Street
Maspeth, New York 11378
HKP PHYSICAL THERAPY, P.C.
29 Broadway, 2nd Floor
Lynbrook, New York 11563
COMPREHENSIVE INTERVENTIONAL PAIN MANAGEMENT, P.C.
400 Route 211 East, Suite 12
Middletown, New York 10940
E. AUGUST CHIROPRACTIC, P.C.
P.O. Box 300 431
Brooklyn, New York 11230
OSOS PSYCHOLOGICAL SERVICES, PLLC
45 West 21st Street, Suite 6D
PRO-ALIGN CHIROPRACTIC, P.C.
375 South End Avenue, Suite 24N
NEW YORK MEDICAL & DIAGNOSTIC CARE, P.C.
221 Center Street
Williston Park, New York 11596
ARDEN M. KAISMAN, M.D., P.C.
141 West 28th Street, Suite 500
PROGRESSIVE-HUDSON ANESTHESIA, LLC
444 Market Street
Saddle Brook, New Jersey 07663
AXIAL CHIROPRACTIC, P.C.
54 Country Drive
Plainview, New York 11803
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NYSCEF DOC. NO. 1
LENOX HILL RADIOLOGY AND MEDICAL IMAGING ASSOCIATES, P.C.
61 East 77th Street
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CENTRAL QUEENS DAY SURGICAL CENTER, INC.
a/k/a QUEENS SURGI-CENTER
83-40 Woodhaven Boulevard
Glendale, New York 11385
SURGICORE SURGICAL CENTER, LLC
444 Market Street
Saddle Brook, New Jersey 07663 ;
SPINE & ORTHOPAEDIC- REHABILITATION CENTER, P.C.
54 South Dean Street
Englewood, New Jersey 07631
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MAR-AND MEDICAL EQUIPMENT, INC.
P.O. Box 0251
Merrick, New York 11566
BIO-REFERENCE LABORATORIES, INC.
Ill Eighth Avenue
JOURNAL SQUARE SURGICAL CENTER, L.L.C.
550 Newark Avenue, 5th Floor
Jersey City, New Jersey 07306
ROXBURY ANESTHESIA, LLC
550 Newark Avenue, 5th Floor
Jersey City, New Jersey 07306
SIMON LEE, M.D., F.A.A., P.M.R.
400 Rella Boulevard, Suite 165
Suffern, New York 10901
STRAKER PSYCHOLOGY, P.C.
26 Court Street, Suite 1600
FOREST HILLS MEDICAL, P.C.
83-40 Woodhaven Boulevard
Glendale, New York 11385
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NYSCEF DOC. NO. 1
JEAN-PIERRE GUILLOUX
933 East 84th Street
GENEVIEVE BAUDIN
117-25 219th Street
Cambria Heights, New York 11411
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ANNA LEWIS
223-199113th Drive
Queens Village, New York 11429 !
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MARIE PAULEUS
140-32 247th Street
Rosedale, New York 11422
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OSCAR JEEF
162 East 35th Street, 2nd Floor
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NYSCEF DOC. NO. 1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
ACE AMERICAN INSURANCE COMPANY,
Index No.:
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!Plaintiff,
-against-
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VERIFIED
COMPLAINT
SILVER NEEDLE ACUPUNCTURE, P.C., HKP
PHYSICAL THERAPY, P.C., COMPREHENSIVE
INTERVENTIONAL PAIN MANAGEMENT, P.C., E.
AUGUST CHIROPRACTIC, P.C., OSOS
PSYCHOLOGICAL SERVICES, PLLC, PRO-ALIGN
CHIROPRACTIC, P.C., NEW YORK MEDICAL &
DIAGNOSTIC CARE, P.C., ARDEN M. KAISMAN,
M.D., P.C., PROGRESSIVE-HUDSON ANESTHESIA,
LLC, AXIAL CHIROPRACTIC, P.C., LENOX HILL
RADIOLOGY AND MEDICAL IMAGING
ASSOCIATES, P.C., CENTRAL QUEENS DAY
SURGICAL CENTER, INC. a/k/a QUEENS
SURGI-CENTER, SURGICORE SURGICAL CENTER,
LLC, SPINE & ORTHOPAEDIC-REHABILITATION
CENTER, P.C., MAR-AND MEDICAL EQUIPMENT,
INC., BIO-REFERENCE LABORATORIES, INC.,
JOURNAL SQUARE SURGICAL CENTER, L.L.C.,
ROXBURY ANESTHESIA, LLC, SIMON LEE, M.D.,
F.A.A., P.M.R., STRAKER PSYCHOLOGY, P.C.,
FOREST HILLS MEDICAL, P.C., JEAN-PIERRE
GUILLOUX, GENEVIEVE BAUDIN, ANNA LEWIS,
MARIE PAULEUS and OSCAR JEEF,
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Defendants.
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Plaintiff, by its attorneys, RUBIN, FIORELLA & FRIEDMAN LLP, alleges upon
information and belief as follows:
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THE PARTIES
That at all times herein, plaintiff, ACE AMERICAN INSURANCE1.
COMPANY ("ACE"), has been and still is authorized by the State of New York to conduct
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the business of insurance.
i2. That at all times herein, defendant SILVER NEEDLE ACUPUNCTURE, P.C.,
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52-48 70th Street, Maspeth, New York 11378, has been and still is a New York State
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professional corporation.
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That at all times here, defendant HKP PHYSICAL THERAPY, P.C., 293.
iBroadway, 2nd Floor, Lynbrook, New York 11563, has been and still is a New York State
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4. That at all times herein, defendant COMPREHENSIVE INTERVENTIONAL
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PAIN MANAGEMENT, P.C., 400 Route 211 East, Suite 12, Middletown, New York 10940,
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has been and still is a New York State professional corporation.
!That at all times herein, defendant E. AUGUST CHIROPRACTIC, P.C., P.O.5.
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Box 300 431, Brooklyn, New York 11230, has been and still is a New York State professional
corporation.
6. That at all times herein, defendant OSOS PSYCHOLOGICAL SERVICES,
PLLC, 45 West 21st Street, Suite 6D, New York, New York 10010, has been and still is a New
York State professional service limited liability company.
7. That at all times herein, defendant PRO-ALIGN CHIROPRACTIC, P.C., 375
South End Avenue, Suite 24N, New York, New York 10280, has been and still is a New
York State professional corporation.
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8. That at all times herein, defendant NEW YORK MEDICAL & DIAGNOSTIC
CARE, P.C., 221 Center Street, Williston Park, New York 11596, has been and still is a New
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York State professional corporation.
That at all times herein, defendant ARDEN M. KAISMAN, M.D., P.C., 1419.
West 28th Street, Suite 500, New York, New York 10001, has been and still is a New York
State professional corporation.
10. Thatat all times herein, defendantPROGRESSIVE-HUDSON ANESTHESIA, !
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LLC, 444 Market Street, Saddle Brook, New Jersey 07663, has been and still is a New Jersey ‘
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State limited liability company that has availed itself in New York State.
11. Thatat all times herein, defendant AXIAL CHIROPRACTIC, P.C., 54 Country
Drive, Plainview, New York 11803, has been and still is a New York State professional
corporation.
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That at all times herein, defendant LENOX HILL RADIOLOGY AND12.
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MEDICAL IMAGING ASSOCIATES, P.C., 61 East 77th Street, New York, New York 10075,
has been and still is a New York State professional corporation.
13. That at all times herein, defendant CENTRAL QUEENS DAY SURGICAL
CENTER, INC. a/k/a QUEENS SURGI-CENTER, 83-40 Woodhaven Boulevard, Glendale,
New York 11385, has been and still is a New York State corporation.
14. That at all times herein, defendantSURGICORE SURGICAL CENTER, LLC,
444 Market Street, Saddle Brook, New Jersey 07663, has been and still is a New Jersey State
limited liability company that has availed itself in New York State.
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That at all times herein, defendant SPINE & ORTHOPAEDIC-15.
REHABILITATION CENTER, P.C., 54 South Dean Street, Englewood, New Jersey 07631,
has been and still is a New Jersey State professional corporation that has availed itself in
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New York State. ;
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16. That at all times herein, defendant MAR-AND MEDICAL EQUIPMENT,
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INC., P.O. Box 0251, Merrick, New York 11566, has been and still is a New York State
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corporation.
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17. Thatat all times herein, defendantBIO-REFERENCE LABORATORIES, INC '■/
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111 Eighth Avenue, New York, New York 10011, has been and still is a New York State
1corporation.
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That at all times herein, defendant JOURNAL SQUARE SURGICAL18. =
CENTER, L.L.C., 550 Newark Avenue, 5th Floor, Jersey City, New Jersey 07306, has been
and still is a New Jersey State limited liability company that has availed itself in New York
State.
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That at all times herein, defendant ROXBURY ANESTHESIA, LLC, 55019.
Newark Avenue, 5th Floor, Jersey City, New Jersey 07306, has been and still is a NewJersey
State limited liability company that has availed itself in New York State.
That at all times herein, defendant SIMON LEE, M.D., F.A.A., P.M.R., 40020.
Rella Boulevard, Suite 165, Suffern, New York 10901, has been and still is a medical doctor
licensed to practice in New York State.
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21. That at all times herein, defendantSTRAKER PSYCHOLOGY, P.C., 26 Court
Street, Suite 1600, Brooklyn, New York 11201, has been and still is a New York State
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That at all times herein, defendant FOREST HILLS MEDICAL, P.C., 83-4022.
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Woodhaven Boulevard, Glendale, New York 11385, has been and still is a New York State
That at all times herein, defendant JEAN-PIERRE GUILLOUX, 933 East 84th23.
Street, Brooklyn, New York 11236, has been and still is a New York State resident. ;
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24. Thatat all times herein, defendantGENEVIEVE BAUDIN, 117-25 219th Street,
Cambria Heights, New York 11411, has been and still is a New York State resident.
That at all times herein, defendant ANNA LEWIS, 223-199 113th Drive,25.
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Queens Village, New York 11429, has been and still is a New York State resident.
That at all times herein, defendant MARIE PAULEUS, 140-32 247th Street,26.
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Rosedale, New York 11422, has been and still is a New York State resident.
That at all times herein, defendant OSCAR JEEF, 162 East 35th Street, 2nd27.
Floor, Brooklyn, New York 11226, has been and still is a New York State resident.
THE DEFENDANTS' SPECIOUS NO-FAULT CLAIMS
28. That defendants JEAN-PIERRE GUILLOUX, GENEVIEVE BAUDIN, ANNA
LEWIS, MARIE PAULEUS and OSCAR JEEF ("Claimants") were five of nine occupants in
a vehicle owned by the Hertz Corporation ("Hertz") and insured by ACE thatwas involved
in a collision on July 5, 2016. The collision occurred on 147th Avenue about 50 feet west of
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Brookville Boulevard in Queens, New York. The police report gives conflicting accounts
of how the collision occurred. The police report indicates that the driver of the Hertz
vehicle, non-party Roxane Dallemand, stated that she was driving westbound on 147th
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Avenue when the adverse vehicle attempted to pass the Hertz vehicle on the right side ;
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icausing an accident. To the contrary, the driver of the adverse vehicle, non-party Joel
Nelson, stated that he was driving westbound on 147th Avenue when the Hertz vehicle
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struck him in the rear. The police report further indicates that it was a minor sideswipe, the
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air bags did not deploy on either vehicle, and that no occupant of either vehicle reported '
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any injuries at the scene and none were visibly injured. The police report also indicates that
at least five of the occupants of the Hertz vehicle went to Franklin General Hospital 1
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Medical Center.
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That despite the minor nature of the collision and the fact that the air bags did29.
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not deploy on either vehicle, no occupant of either vehicle claimed any injury at the scene
nor was visibly injured, the Claimants later reported to have sustained serious bodily =
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injuries in this collision. ACE assigned claim number 02-2016-16581 to all claims relating
to the July 5, 2016 collision.
That under 11 N.Y.C.R.R. 65-1.1, which governs No-Fault claims for the30.
Claimant, the "Mandatory Personal Injury Protection Endorsement" of the regulation
requires that insurers such as ACE provide No-Fault benefits to persons injured in the use
or operation of vehicles in New York State, subject to certain conditions and terms. The
"conditions" provision of the Mandatory Personal Injury Protection Endorsement states:
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Conditions
Action Against Company. 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.
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. . . Upon request by the Company, the eligible injured person
or that person's assignee or representative shall:
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as may reasonably be required submit to examinations
under oath by any person named by the Company and
subscribe the same;
(b)
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provide any other pertinent information that may assist
the Company in determining the amount due and
payable.
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The eligible injured person shall submit to medical
examination by physicians selected by, or acceptable to, the
Company, when, and as often as, the Company may
reasonably [require];
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That the "exclusions" provision of the Mandatory Personal Injury Protection31.
Endorsement states:
Exclusions
This coverage does not apply to personal injury sustained by:
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any person who intentionally causes his or her own
personal injury.
(f)
That the Claimants were persons who allegedly sustained personal injuries32.
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arising out of the use or operation of the insured motor vehicle and began receiving
treatment from defendants SILVER NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL
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THERAPY, P.C., COMPREHENSIVE INTERVENTIONAL PAIN MANAGEMENT, P.C., !
E. AUGUST CHIROPRACTIC, P.C., OSOS PSYCHOLOGICAL SERVICES, PLLC, :
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PRO-ALIGN CHIROPRACTIC, P.C., NEWYORKMEDICAL & DIAGNOSTIC CARE, P.C., ;
iARDEN M. KAISMAN, M.D., P.C., PROGRESSIVE-HUDSON ANESTHESIA, LLC, AXIAL
CHIROPRACTIC, P.C., LENOX HILL RADIOLOGY AND MEDICAL IMAGING
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ASSOCIATES, P.C., CENTRALQUEENS DAY SURGICAL CENTER, INC. a/k/a QUEENS
SURGI-CENTER, SURGICORE SURGICAL CENTER, LLC, SPINE & :
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ORTHOPAEDIC-REHABILITATION CENTER, P.C., MAR-AND MEDICAL EQUIPMENT,
INC., BIO-REFERENCE LABORATORIES, INC., JOURNAL SQUARE SURGICAL
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CENTER, L.L.C., ROXBURY ANESTHESIA, LLC, SIMON LEE, M.D., F.A.A., P.M.R•/
STRAKER PSYCHOLOGY, P.C. and FOREST HILLS MEDICAL, P.C. (collectively.
"Medical Provider Defendants"). To date, the Medical Provider Defendants have submitted
tens of thousands of dollars in bills for treatment allegedly provided to the Claimants.
That in addition to the sheer magnitude of the claims submitted, the claim's33.
legitimacy was questionable for the following reasons:
There were ten people listed on the police report, including nine from
the Hertz vehicle;
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The insured vehicle was rented for $398.00 a few hours prior to the
alleged collision by JEAN-PIERRE GUILLOUX, however, the driver
at the time of the collision, non-party Roxane Dallemand, was listed
as a permissive driver of the rental;
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:The damage to the insured vehicle was minor and required only
about $1,000,00 to repair;
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Both vehicles sustained minimal damage and were drivable from the
scene of the collision;
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..The Claimants were treating heavily and receiving boilerplate and
mirror treatment from the same group of medical providers, despite
the fact that the police report indicates that no occupant of either
vehicle reported any injuries at the scene nor was visibly injured in
any way; and
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Despite the fact that the police report indicates that it was only a
minor sideswipe, none of the occupants reported any injuries and
were not visibly injured, at least five of the nine occupants of the
Hertz vehicle went to the hospital from the scene.
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That these factors raised a strong probability that the July 5, 2016 loss was34.
staged or intentionally caused and/or that the treatment submitted was not causally
related to the collision, both of which would be considered non-covered events under the
No-Fault Regulations.
Based upon these factors, ACE, pursuant to its rights under the No-Fault35.
Regulations, duly and properly requested examinations under oath ("EUOs") of the
Claimants to confirm the legitimacy of this loss and the necessity of any alleged treatment
and referrals.
36. That despite due demand, GENEVIEVE BAUDIN failed to appear for her
duly scheduled EUO on two or more occasions. These failures to appear were a violation
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of the No-Fault Regulations and a violation of a condition precedent to coverage and ACE
has duly denied all claims asserted by GENEVIEVE BAUDIN and her assignees on this
basis.
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37. That JEAN-PIERRE GUILLOUX, ANNA LEWIS, MARIE PAULEUS and
iOSCAR JEEF appeared for their EUOs, however, their testimony contained many
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inaccuracies and inconsistencies thatled ACE to conclude that the underlying loss was not
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accidental, and therefore not an insured event. Moreover, their testimony led ACE to
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conclude that much of the treatment that they received from the Medical Provider
iDefendants was unnecessary, excessive and abusive of the No-Fault system. In particular:
ANNA LEWIS testified that the driver of the insured vehicle at the
time of the collision was named Karen and that she knew Karen from
the neighborhood. She further testified that prior to the collision she
and Karen were going to a party in Brooklyn, but that she does not
know Karen's contact information or last name. There is no one
named Karen on the police report and the driver is listed as "Roxane
Dallemand." None of the other occupants in the insured vehicle called
the driver "Karen" and only knew her as "Roxane;"
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ANNA LEWIS testified that when Karen picked her up, there were
several individuals already in the insured vehicle. She testified that
she did not know anybody in the vehicle besides Karen, who was
driving. She described Karen as 5'6" with a regular build and long
hair. She also testified that she did not recognize any of the names of
the people listed on the police report;
MARIE PAULEUS testified that the driver of the insured vehicle was
Roxane Dallemand, the wife of JEAN-PIERRE GUILLOUX's friend.
She testified that she is dating JEAN-PIERRE GUILLOUX, knows
GENEVIEVE BAUDIN and OSCAR JEEF, but that all other occupants
of the insured vehicle were strangers;
OSCAR JEEF testified that all occupants of the insured vehicle were
strangers to him, except JEAN-PIERRE GUILLOUX, and that he met
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MARIE PAULEUS and Roxane Dallemand the day of the collision. He
also testified that the driver of the insured vehicle was Roxane
Dallemand;
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OSCAR JEEF testified that after impact he stayed at the scene of the
collision for a few minutes, but he left in a taxi prior to either the
police or ambulance arriving. He testified that he did not have any
pain at the scene of the collision and just wanted to go home, so he left
and went home. He further testified that he waited several weeks
before first seeking medical attention;
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..ANNA LEWIS, MARIE PAULEUS and OSCARJEEF testified thatthe
collision occurred on their way back from a party in Queens.
However, JEAN-PIERRE GUILLOUX testified thatthey never actually
made it to the party in Queens and, instead, drove around the area
with short stops for food and the collision occurred on the way to
drop off the occupants of the vehicle at their respective homes;
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JEAN-PIERRE GUILLOUX testified that he is not receiving any
treatment because he did not suffer any injuries in this collision. He
testified that he is treating for injuries suffered inhis prior June 3,2016
collision;
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MARIE PAULEUS and JEAN-PIERRE GUILLOUX testified thattheir
young children were in the insured vehicle at the time of the collision.
However, the police report does not make mention of any young
children in the vehicle and neither ANNA LEWIS nor OSCAR JEEF
mentioned that there were small children in the vehicle; and
All Claimants testified that they underwent several MRIs, but have
not received any results and their treatments remained the same.
That after the transcripts of MARIE PAULEUS, OSCAR JEEF and38.
JEAN-PIERRE GUILLOUX's EUOs were received, the original and a copy of eachtranscript
were forwarded to them, via their attorney, for subscription. Despite due demand, MARIE
PAULEUS, OSCARJEEF andJEAN-PIERRE GUILLOUX failed to return a subscribed copy
of their EUO transcripts. These failures to return a subscribed copy of the transcript was
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a violation ofthe No-FaultRegulations and a violation of a condition precedent to coverage
and ACE has duly denied all claims asserted by them, or as their assignees, on this basis.
That based uponthese factors, ACE, pursuant to its rights under the No-Fault
Regulations, duly and properly sought EUOs of the Medical Provider Defendants who
submitted claims as the assignees of the four appearing Claimants, JEAN-PIERRE
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GUILLOUX, ANNA LEWIS, MARIE PAULEUS and OSCAR JEEF, to verify the bona fides
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of the claims, the necessity of any alleged treatment and referrals, as well as to assess the
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causality between the treatment and the alleged injuries. '
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40. That despite due demand, COMPREHENSIVE INTERVENTIONAL PAIN
MANAGEMENT, P.C., E. AUGUST CHIROPRACTIC, P.C., OSOS PSYCHOLOGICAL
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SERVICES, PLLC, PRO-ALIGN CHIROPRACTIC, P.C., NEW YORK MEDICAL &
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DIAGNOSTIC CARE, P.C., ARDEN M. KAISMAN, M.D., P.C., PROGRESSIVE-HUDSON i
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ANESTHESIA, LLC, LENOX HILL RADIOLOGY AND MEDICAL IMAGING
ASSOCIATES, P.C., CENTRALQUEENS DAY SURGICALCENTER, INC. a/k/aQUEENS =
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SURGI-CENTER, SURGICORE SURGICAL CENTER, LLC, SPINE &
ORTHOPAEDIC-REHABILITATION CENTER, P.C., MAR-AND MEDICALEQUIPMENT,
CENTER, L.L.C., ROXBURY ANESTHESIA, LLC, SIMON LEE, M.D., F.A.A., P.M.R.,
STRAKER PSYCHOLOGY, P.C. and FOREST HILLS MEDICAL, P.C. all failed to appear
for their duly scheduled EUOs on two or more occasions each. These failures to appear
were a violation of the No-Fault Regulations and a violation of a condition precedent to
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coverage for all No-Fault claims submitted by them and ACE has duly denied their claims
on this basis.
That at no time did any of the non-appearing Medical Provider Defendants41.
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respond or object to the EUO scheduling letters and there is no questionthat these Medical
Provider Defendants failed to appear.
42. ThatSILVER NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL THERAPY,
P.C. and AXIAL CHIROPRACTIC, P.C. appeared for their EUOs. However, after the EUO
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transcripts were received, one original and one copy of the transcript were forwarded to ‘
the provider, via their attorneys, for subscription. Despite due demand, SILVER NEEDLE
;
=
ACUPUNCTURE, P.C., HKP PHYSICAL THERAPY, P.C. and AXIAL CHIROPRACTIC,
P.C. failed to return subscribed copies of their EUO transcripts. These failures to return
subscribed copies oftheir EUO transcripts were a violation of the No-Fault Regulations and
a violation of a condition precedent to coverage for all No-Fault claims submitted by
SILVER NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL THERAPY, P.C. and AXIAL
CHIROPRACTIC, P.C. and ACE has duly denied their claims on this basis.
That based on all of the facts and circumstances outlined above and its43.
investigation of the claim, ACE maintains thatthe July 5,2016 collisionwas an intentionally
caused or staged event in furtherance of a scheme to defraud ACE and therefore not an
insurable incident, and ACE has duly denied the claims of the defendants on this basis.
44. That based on all of the facts and circumstances outlined above and its
investigation of the claim, ACE maintains that the injuries of the Claimants and any
13
17 of 26

INDEX NO. 156911/2017
FILED: NEW YORK COUNTY CLERK 08/02/2017 12:53 PM]
NYSCEF DOC. NO. 1
subsequent No-Fault treatment submitted by the Medical Provider Defendants were not
causally related to the collision and ACE has duly denied the claims of the defendants on
this basis.
That based on all of the facts and circumstances outlined above and its45.
investigation of the claim, ACE maintains a founded belief that the alleged injuries of the
Claimants did not arise from an insured incident and ACE has duly denied the claims of
the defendants on this basis.
That the defendants have commenced or will commence legal actions or file46.
'
:
for arbitrations against ACE seeking money damages for the No-Fault claims that ACE
properly denied as detailed above.
That ACE requires and requests a declaration of the rights and other legal47.
relations of the respective parties in accordance with the applicable laws relating to
declaratory judgment.
That ACE has no adequate remedy at law.48.
That ACE has not previously sought the relief requested herein in this or any49.
other Court.
FOR A FIRST CAUSE OF ACTION
ACE repeats and realleges the allegations contained in paragraphs 1 through50.
49 of the complaint as if fully set forth herein.
That despite due demand, GENEVIEVE BAUDIN failed to appear for duly51.
scheduled EUOs on two or more occasions, which was a violation of a condition precedent
to coverage, and ACE has duly denied all claims submitted by GENEVIEVE BAUDIN and
14
18 of 26

INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
the Medical Provider Defendants proceeding as her assignees, on that basis.
That this breach of the No-Fault Regulations relieves ACE of any obligation52.
i
:
:
‘
i
i
1
i
to pay the No-Faultclaims ofGENEVIEVE BAUDIN and the Medical Provider Defendants
proceeding as her assignees.
That by reason of the foregoing, ACE is entitled to ajudgment declaring that53.
it owes no duty to pay the No-Fault claims of GENEVIEVE BAUDIN and the Medical
Provider Defendants proceeding as her assignees, with respect to the July 5,2016 collision,
FOR A SECOND CAUSE OF ACTION ;
i
54. ACE repeats and realleges the allegations contained in paragraphs 1 through
That based upon the circumstances stated above and the results of ACE's55.
!
investigation into the claim, ACE maintains a founded belief that the alleged injuries of the
Claimants did not arise from an insured incident and ACE has duly denied all claims of the
;
defendants on that basis.
That this breach of the No-Fault Regulations relieves ACE of any obligations56.
to pay the No-Fault claims of the defendants.
That by reason of the foregoing, ACE is entitled to a judgment declaring that57.
it owes no duty to pay the No-Fault claims of the defendants with respect to the July 5,
2016 collision.
FOR A THIRD CAUSE OF ACTION
15
19 of 26

INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
That despite due demand, COMPREHENSIVE INTERVENTIONAL PAIN59.
:
DIAGNOSTIC CARE, P.C., ARDEN M. KAISMAN, M.D., P.C., PROGRESSIVE-HUDSON ;
'
iANESTHESIA, LLC, LENOX HILL RADIOLOGY AND MEDICAL IMAGING
■
ASSOCIATES, P.C., CENTRAL QUEENS DAY SURGICAL CENTER, INC. a/k/a QUEENS
!
:
;
ORTHOPAEDIC-REHABILITATIONCENTER, P.C., MAR-AND MEDICAL EQUIPMENT, '
■
1CENTER, L.L.C., ROXBURY ANESTHESIA, LLC, SIMON LEE, M.D., F.A.A., P.M.R.,
I
STRAKER PSYCHOLOGY, P.C. and FOREST HILLS MEDICAL, P.C. failed to appear for
:
duly scheduled EUOs on two or more occasions each, which was a violation of a condition
i
!
.
.
precedent to coverage and ACE has duly denied their claims on that basis.
That these breaches of the No-Fault Regulations relieves ACE of any60. =
■
obligations to pay the No-Fault claims of COMPREHENSIVE INTERVENTIONAL PAIN
DIAGNOSTIC CARE, P.C., ARDEN M. KAISMAN, M.D., P.C., PROGRESSIVE-HUDSON
ANESTHESIA, LLC, LENOX HILL RADIOLOGY AND MEDICAL IMAGING
ASSOCIATES, P.C., CENTRALQUEENS DAYSURGICALCENTER, INC. a/k/a QUEENS
ORTHOPAEDIC-REHABILITATION CENTER, P.C., MAR-AND MEDICALEQUIPMENT,
16
20 of 26

INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
CENTER, L.L.C., ROXBURY ANESTHESIA, LLC, SIMON LEE, M.D., F.A.A., P.M.R.,
i
!
STRAKER PSYCHOLOGY, P.C. and FOREST HILLS MEDICAL, P.C.
That by reason of the foregoing, ACE is entitled to ajudgment declaring that61.
i
it owes no duty to pay the No-Fault claims of COMPREHENSIVE INTERVENTIONAL
PAIN MANAGEMENT, P.C., E. AUGUST CHIROPRACTIC, P.C., OSOS
1
PSYCHOLOGICAL SERVICES, PLLC, PRO-ALIGN CHIROPRACTIC, P.C., NEW YORK
ARDEN M. KAISMAN, M.D., P.C., ;MEDICAL & DIAGNOSTIC CARE, P.C•/
IPROGRESSIVE-HUDSON ANESTHESIA, LLC, LENOX HILL RADIOLOGY AND
MEDICAL IMAGING ASSOCIATES, P.C., CENTRAL QUEENS DAY SURGICAL
CENTER, INC. a/k/a QUEENSSURGI-CENTER, SURGICORE SURGICALCENTER, LLC,
;
:
SPINE & ORTHOPAEDIC-REHABILITATION CENTER, P.C., MAR-AND MEDICAL
EQUIPMENT, INC., BIO-REFERENCE LABORATORIES, INC., JOURNAL SQUARE
!SURGICAL CENTER, L.L.C., ROXBURY ANESTHESIA, LLC, SIMON LEE, M.D., F.A.A.,
P.M.R., STRAKER PSYCHOLOGY, P.C. and FOREST HILLS MEDICAL, P.C. with respect
to the July 5, 2016 collision.
FOR A FOURTH CAUSE OF ACTION
62. ACE repeats and realleges the allegations contained in paragraphs 1 through
That despite due demand, MARIE PAULEUS, OSCAR JEEF, JEAN-PIERRE63.
GUILLOUX, SILVER NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL THERAPY, P.C.
17
21 of 26

INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
and AXIAL CHIROPRACTIC, P.C. failed to return a subscribed copy of their EUO
transcripts. These failures to return a subscribed copy of the transcripts were a violation
of the No-Fault Regulations and violations of a condition precedent to coverage and ACE
!
has duly denied all claims submitted by MARIE PAULEUS, OSCAR JEEF, JEAN-PIERRE ;
'
iGUILLOUX, and the Medical Provider Defendants proceeding as their assignees, SILVER
i
i
NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL THERAPY, P.C. and AXIAL
:
CHIROPRACTIC, P.C. on that basis.
;
That these breaches of the No-Fault Regulations relieves ACE of any64.
.
obligations to pay No-Fault claims of MARIE PAULEUS, OSCAR JEEF, JEAN-PIERRE
GUILLOUX, and the Medical Provider Defendants proceeding as their assignees, SILVER 1
!
NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL THERAPY, P.C. and AXIAL ■
:

CHIROPRACTIC, P.C.
!it owes no duty to pay the No-Fault claims of MARIE PAULEUS, OSCAR JEEF,
JEAN-PIERRE GUILLOUX and the Medical Provider Defendants proceeding as their
assignees, SILVER NEEDLE ACUPUNCTURE, P.C., HKP PHYSICAL THERAPY, P.C. and
AXIAL CHIROPRACTIC, P.C. with respect to the July 5, 2016 collision.
!
FOR A FIFTH CAUSE OF ACTION
18
22 of 26

INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
investigation into the claim, ACE maintains that the July 5, 2016 collision was an
i
!
intentionally staged event in furtherance of a scheme to defraud ACE and therefore is not
an insurable event.
;
to pay the No-Fault claims of the defendants. ■;
‘
..
it owes no duty to pay the No-Fault claims of the defendants with respect to the July 5, ;
I
:
2016 collision.
FOR A SIXTH CAUSE OF ACTION
;
:
investigation into the claim, ACE maintains that the alleged injuries of the Claimants and
any subsequent No-Fault treatment submitted by the Medical Provider Defendants were
not causally related to the alleged July 5, 2016 collision.
to pay the No-Fault claims of the defendants.
it owes no duty to pay the No-Fault claims of the defendants with respect to the July 5,
2016 collision.
19
23 of 26

INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
FOR A SEVENTH CAUSE OF ACTION
!
That ACE will suffer irreparable harm if a permanent stay of all arbitrations.75.
;
'
ilawsuits and/ or claims by the defendants is not issued pending the determination of this
i
i
action.
:
That ACE is therefore entitled to a judgment declaring a permanent stay of76.
;
all arbitrations, lawsuits and/or claims by defendants relating to No-Fault claims of the
.
Claimants arising from the July 5, 2016 collision referenced above.
WHEREFORE, plaintiff, ACE AMERICAN INSURANCE COMPANY, demands 1
!
judgment as follows: ■
:
On the First Cause of Action against GENEVIEVE BAUDIN and the
Medical Provider Defendants proceeding as her assignees, declaring
that ACE owes not duty to pay No-Fault claims with respect to the
July 5, 2016 collision referenced in the complaint;
a.
!
:
!
!
On the Second Cause of Action against all defendants, declaring that
ACE owes no duty to pay No-Fault claims with respect to the July 5,
2016 collision referenced in the complaint;
b.
On the Third Cause of Action against COMPREHENSIVE
INTERVENTIONAL PAIN MANAGEMENT, P.C., E. AUGUST
CHIROPRACTIC, P.C., OSOS PSYCHOLOGICALSERVICES, PLLC,
PRO-ALIGN CHIROPRACTIC, P.C., NEW YORK MEDICAL &
DIAGNOSTIC CARE, P.C., ARDEN M. KAISMAN, M.D., P.C.,
PROGRESSIVE-HUDSON ANESTHESIA, LLC, LENOX HILL
RADIOLOGY AND MEDICAL IMAGING ASSOCIATES, P.C.,
CENTRAL QUEENS DAY SURGICAL CENTER, INC. a/k/a
QUEENS SURGI-CENTER, SURGICORE SURGICAL CENTER, LLC,
SPINE & ORTHOPAEDIC-REHABILITATION CENTER, P.C.,
MAR-AND MEDICAL EQUIPMENT, INC., BIO-REFERENCE
c.
20
24 of 26

INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
LABORATORIES, INC., JOURNAL SQUARE SURGICAL CENTER,
L.L.C., ROXBURY ANESTHESIA, LLC, SIMON LEE, M.D., F.A.A.,
P.M.R., STRAKER PSYCHOLOGY, P.C. and FOREST HILLS
MEDICAL, P.C., declaring that ACE owes no duty to pay No-Fault
claims with respect to the July 5, 2016 collision referenced in the
complaint; i
:
On the Fourth Cause of Action against MARIE PAULEUS, OSCAR
JEEF and JEAN-PIERRE GUILLOUX, and the Medical Provider
Defendants proceeding as their assignees, SILVER NEEDLE
ACUPUNCTURE, P.C., HKPPHYSICALTHERAPY, P.C. and AXIAL
CHIROPRACTIC, P.C., declaring that ACE owes no duty to pay
No-Fault claims with respect to the July 5,2016 collision referenced in
the complaint;
d.
i
1
;
;
I
On the Fifth Cause of Action against all defendants, declaring that
e.
On the Sixth Cause of Action against all defendants, declaring that
f.
;
:
On the Seventh Cause of Action against all defendants permanently
staying all No-Fault lawsuits and arbitrations brought by the
defendants pending the outcome of this action relating to the July 5,
g-
For costs and disbursements of this action; andh.
For such other and further relief as the Court deems just and proper.i.
New York, New York
August 1, 2017
DATED:
Yours, etc.
LCharles T. Rubin, Esq.
RUBIN, FIORELLA & FRIEDMAN LLP
Attorneys for Plaintiff
630 Third Avenue, 3rd Floor
(212) 953-2381
Our File: 0297.32733
21
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INDEX NO. 156911/2017
NYSCEF DOC. NO. 1
ATTORNEY VERIFICATION
)STATE OF NEW YORK
:) ss.:
)COUNTY OF NEW YORK ;
'
iCHARLES T. RUBIN, an attorney duly admitted to practice law in the State of New
i
i
York, affirms:
:
That the undersigned is a member of the firm of RUBIN, FIORELLA & FRIEDMAN
;
LLP, attorneys of record for plaintiff, ACE AMERICAN INSURANCE COMPANY, in the
.
within action; that the undersigned has read the foregoing Verified Complaint and knows the
contents thereof; that the same are true to affirmant's own knowledge, except as to those 1
!
matters therein stated to be alleged on information and belief; and as to those matters ■
:

affirmant believes them to be true.
The undersigned further states that the reason this affirmation is made by the
!undersigned and not by plaintiff is because said party does not reside or have a place of
!
business in New York County, where the affirmant's office is located.
The grounds of affirmant's belief as to all matters not stated to be upon affirmant's own
knowledge, are investigative material contained in affirmant's file.
The undersigned affirms that the foregoing statements are true, under penalty of
perjury.
New York, New York
August 1, 2017
DATED:
lCHARLES T. RUBIN
26 of 26

Ace vs BioReference 8-2017

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