FILED: NEW YORK COUNTY CLERK 08/27/ :01 AM INDEX NO /2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/27/2020

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

---X

KEMPER INDEPENDENCE INSURANCE COMPANY, Index No.:

Plaintiff, SUMMONS

-against-

York County as a place of trial

Basis of venue

: Address

of FJ Ortho.

AHARON GUTTERMAN, MD, PLLC, ATB SERVICES, INC., AVERROES PHYSICAL THERAPY, PC, AZ CARE, INC., BERGENFIELD SURGICAL CENTER, BJ569 ACUPUNCTURE, PC, COMPREHENSIVE MEDICAL ASSIST, PC., DIANON SYSTEMS, INC., ENGLINTON MEDICAL, P.C., FAST RECOVERY CPM & EQUIPMENT CORP., FJ ORTHOPAEDICS & PAIN MANAGEMENT, P.L.L.C., HAIHU MEDICAL, P.C., JONATHAN LEWIN MD, P.C., KOLB RADIOLOGY, P.C., LAXMIDHAR DIWAN, M.D., A/K/A/ QUEENS ARTHROSCOPY &

SPORTS MEDICINE, LENCO DIAGNOSTIC LABORATORY, LENOX HILL RADIOLOGY MEDICAL IMAGING, NEW MILLENNIUM MEDICAL IMAGING, P.C., NEWKIRK AVE OFFICE BASED SURGICAL, NYEEQASC, LLC, PMR MEDICAL, P.C., PROTECHMED, INC., SEDATION VACATION PERIOP MED, P.L.L.C., SHERMAN ABRAMS LABORATORY, TITAN PHARMACY LEVRON, INC., UNICAST, INC., VVX, INC.,

And, JAHEEM GRAYTON,

Defendants.

---X 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, exclusive 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: New York, New York August 27, 2020

___________________________

By: Harlan R. Schreiber, Esq.

GOLDBERG, MILLER & RUBIN, P.C.

Attorneys for Plaintiff 1501 Broadway, Suite 715 New York, New York 10036 (646) 863-1531

KE.01026

DEFENDANTS’ ADDRESSES AHARON GUTTERMAN, MD, PLLC

1409 EAST 34

STREET BROOKLYN, NY 11210-5428 ATB SERVICES, INC., P.O. BOX 754124

FOREST HILLS, NY 11375A

AVERROES PHYSICAL THERAPY, PC P.O. BOX 940098

ROCKAWAY PARK, NY 11694 AZ CARE, INC.,

P.O. BOX 290698

BROOKLYN, NY 11229

BERGENFIELD SURGICAL CENTER 1 NORTH WASHINGTON AVE, STE. A BERGENFIELD, NJ 07621-2

BJ569 ACUPUNCTURE, P.C., P.O. BOX 520592

FLUSHING, NY 11352

COMPREHENSIVE MEDICAL ASSIST, P.C., PO BOX 747560

REGO PARK, NY 11374-9997 DIANON SYSTEMS, INC., P.O. BOX 2270

BURLINGTON, NC 27216-2270 ENGLINGTON MEDICAL, P.C., 9525 JAMAICA AVE

WOODHAVEN, NY 11421

FAST RECOVERY CPM & EQUIPMENT CORP., 4 ARLINGTON AVENUE

BROOKLYN, NY 11207

FJ ORTHOPAEDICS & PAIN MANAGEMENT, P.L.L.C., P.O. BOX 21804

NEW YORK, NY 10087-1804 HAIHU MEDICAL, P.C., 492 LEFFERT AVE

BROOKLYN, NY 11225

JONATHAN LEWIN, MD, P.C., P.O. BOX 21803

NEW YORK, NY 10087-1803 KOLB RADIOLOGY, P.C., 100 GARDEN CITY, PL., GARDEN CITY, NY 11530 LAXMIDHAR DIWAN, M.D.,

a/k/a QUEENS ARTHROSCOPY & SPORTS MEDICINE 62-54 97

PLACE, STE 2H

REGO PARK, NY 11374-7080

LENCO DIAGNOSTIC LABORATORY 1857 86

STREET

BROOKLYN, NY 11214-3108

LENOX HILL RADIOLOGY MEDICAL IMAGING 385 W. JOHN STREET, 2

FLOOR

HICKSVILLE, NY 11891

NEW MILLENNIUM MEDICAL IMAGING, P.C., 138-48 ELDER AVENUE

FLUSHING, NY 11355

NEWKIRK AVE OFFICE BASED SURGERY P.O. BOX 21802

NEW YORK, NY 10087-1802 NYEEQASC, LLC

4564 FRANCIS LEWIS BLVD

BAYSIDE, NY 11361

PMR MEDICAL, P.C., P.O. BOX 21735

NEW YORK, NY 10087-1735 PROTECHMED, INC.,

70-64 KISSENA BLVD., 3

FL FLUSHING, NY 11367

SEDATION VACATION PERIOP MED PLLC 894 BEDFORD AVE

BROOKLYN, NY 11205

SHERMAN ABRAMS LABORATORY 63 FLUSHING AVE., BLD 292, STE. 417 BROOKLYN, NY 11205-1005

TITAN PHARMACY LEVRON, INC., P.O. BOX 6246

LONG ISLAND CITY, NY 11106 UNICAST INC.,

6909 164

STREET, SUITE 203 FRESH MEADOWS, NY 11365 VVX, INC.,

P.O. BOX 230163

BROOKLYN, NY 11223

JAHEEM GRAYTON

330 HINDSALE STREET

BROOKLYN, NY 11207

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

---X

KEMPER INDEPENDENCE INSURANCE COMPANY, Index No.:

Plaintiff, COMPLAINT

-against-

AHARON GUTTERMAN, MD, PLLC, ATB SERVICES, INC., AVERROES PHYSICAL THERAPY, PC, AZ CARE, INC., BERGENFIELD SURGICAL CENTER, BJ569 ACUPUNCTURE, PC, COMPREHENSIVE MEDICAL ASSIST, PC., DIANON SYSTEMS, INC., ENGLINTON MEDICAL, P.C., FAST RECOVERY CPM & EQUIPMENT CORP., FJ ORTHOPAEDICS & PAIN MANAGEMENT, P.L.L.C., HAIHU MEDICAL, P.C., JONATHAN LEWIN, MD, P.C., KOLB RADIOLOGY, P.C., LAXMIDHAR DIWAN, M.D., A/K/A/ QUEENS ARTHROSCOPY &

SPORTS MEDICINE,LENCO DIAGNOSTIC LABORATORY, LENOX HILL RADIOLOGY MEDICAL

IMAGING, NEW MILLENNIUM MEDICAL IMAGING, P.C., NEWKIRK AVE OFFICE BASED SURGICAL, NYEEQASC, LLC, PMR MEDICAL, P.C., PROTECHMED, INC., SEDATION VACATION PERIOP MED, P.L.L.C., SHERMAN ABRAMS LABORATORY, TITAN PHARMACY LEVRON, INC., UNICAST, INC., VVX, INC., and JAHEEM GRAYTON,

Defendants.

---X

Plaintiff, Kemper Independence Insurance Company, by its attorneys, Goldberg, Miller & Rubin, P.C., allege, on information and belief as follows:

THE PARTIES

1. That plaintiff KEMPER INDEPENDENCE INSURANCE COMPANY

(“KEMPER”) has been and still is a foreign insurance company organized and

authorized by the State of New York to conduct the business of insuring New York State vehicles.

2. That defendant AHARON GUTTERMAN, MD, PLLC, 1409 East 34

Street, Brooklyn, New York 11210-5428, has been and still is a New York State professional corporation.

3. That defendant ATB SERVICES, INC., P.O. Box 754124, Forest Hills, New York 11375A, has been and still is a New York State professional corporation.

4. That defendant AVERROES PHYSICAL THERAPY, P.C., P.O. Box 940098 Rockaway Park, New York 11694, has been and still is a New York State professional corporation.

5. That defendant AZ CARE INC., P.O. Box 290698, Brooklyn, New York 11229, has been and still is a New York State corporation.

6. That defendant BERGENFIELD SURGICAL CENTER, 2747 1 North Washington Avenue, Ste. A, Bergenfield, New Jersey 07621-2, has been and still is a New Jersey corporation doing business in New York State.

7. That defendant BJ569 ACUPUNCTURE, P.C., P.O. Box 520592 Flushing, New York 11352, has been and still is a New York State professional corporation.

8. That defendant COMPREHENSIVE MEDICAL ASSIST, P.C., P.O. Box

747560, Rego Park, New York 11374-9997, has been and still is a New York State

professional corporation.

9. That defendant DIANON SYSTEMS, INC., P.O. Box 2270, Burlington, North Carolina, has been and still is a North Carolina corporation doing business in New York State.

10. That defendant ENGLINGTON MEDICAL, P.C., 9525 Jamaica Avenue,

Woodhaven, New York 11421, has been and still is a New York State professional corporation.

11. That defendant FAST RECOVERY CPM & PAIN MANAGEMENT, PLLC, 4 Arlington Avenue, Brooklyn, New York 11207 has been and still is a New York State professional corporation.

12. That defendant FJ ORTHOPAEDICS & PAIN MANAGEMENT, PLLC, P.O. Box 21804, New York, New York 10087-1804 has been and still is a New York State professional corporation.

13. That defendant HAIHU MEDICAL, P.C., 492 Leffert Avenue, Brooklyn, New York 11225, has been and still is a New York State professional corporation.

14. That defendant JONATHAN LEWIN, MD, P.C., P.O. Box 21803, New

York, New York 10087-1803 has been and still is a New York State professional corporation.

15. That defendant KOLB RADIOLOGY, P.C., 100 Garden City Place, Garden City, New York 11530 has been and still is a New York State professional corporation.

16. That defendant LAXMIDHAR DIWAN, M.D., a/k/a QUEENS

ARTHROSCOPY & SPORTS MEDICINE, 65-54 97

Street, Ste 2H, Rego Park, New

York 11374-7080, has been and still is a New York State professional corporation.

17. That defendant LENCO DIAGNOSTIC LABORATORY, 1857 86

Street, Brooklyn, New York 11214-3108 has been and still is a New York State professional corporation.

18. That defendant LENOX HILL RADIOLOGY MEDICAL IMAGING, 385

W. John Street, 2

Floor, Hicksville, New York 11891, has been and still is a New York State professional corporation.

19. That defendant NEW MILLENNIUM MEDICAL IMAGING, P.C., 138-48 Elder Avenue, Flushing, New York 11355, has been and still is a New York State professional corporation.

20. That defendant NEWKIRK AVE OFFICE BASED SURGERY, P.O. Box 21802, New York, New York 10087-1802, has been and still is a New York State professional corporation.

21. That defendant NYEEQASC, LLC, 4564 Francis Lewis Blvd., Bayside, New York 11361, has been and still is a New York State professional corporation.

22. That defendant PMR MEDICAL, P.C., P.O. Box 21735, New York, New York 10087-1735, has been and still is a New York State professional corporation.

23. That defendant PROTECHMED, INC., 70-64 Kissena Blvd., 3

Fl., Flushing, New York 11367, has been and still is a New York State professional corporation.

24. That defendant SEDATION VACATION PERIOP MED PLLC, 894

Bedford Avenue, Brooklyn, New York 11205, has been and still is a New York State

professional corporation.

25. That defendant SHERMAN ABRAMS LABORATORY, 63 Flushing Avenue, Bld. 292, Ste., 417, Brooklyn, New York, 11205-1005, has been and still is a New York State professional corporation.

26. That defendant TITAN PHARMACY LEVRON, INC., P.O. Box 6246, Long

Island City, New York 11106, has been and still is a New York State professional corporation.

27. That defendant UNICAST, INC., 6909 164

Street, Suite 203, Fresh Meadows, New York, New York 11365, has been and still is a New York State professional corporation.

28. That defendant, VVX, INC., P.O. Box 230163, Brooklyn, New York 11223, has been and still is a New York State professional corporation.

29. That defendant JAHEEM GRAYTON, 330 Hindsale Street, Brooklyn, New York 11207, has been and still is a New York State resident.

DEFENDANTS’ CLAIMS

30. That on June 12, 2019, defendant JAHEEM GRAYTON (“the Claimant”) parked and exited the Kemper insured vehicle on Kingston Avenue and Union Street, Brooklyn, New York when the Kemper insured vehicle was allegedly struck in the rear causing the same to strike the Claimant as he stood in the front of the Kemper insured vehicle.

31. The Claimant later reported to have sustained significant bodily injuries

in the collision, and KEMPER assigned claim number C033782NY19 to all No-Fault

claims relating to the alleged June 12, 2019 collision.

32. That under 11 N.Y.C.R.R. § 65-1.1, which governs No-Fault claims for the Claimant, the “Mandatory Personal Injury Protection Endorsement” of the regulation requires that insurers such as KEMPER provide No-Fault benefits to persons injured in the use or operation of vehicles in New York State, subject to certain conditions and terms.

32. That the “conditions” provision of the Mandatory Personal Injury Protection Endorsement states:

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.

* * *

Upon request by the Company, the eligible injured person or that person's assignee or representative shall:

* * *

(b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same.

* * *

(d) provide any other pertinent information that may assist the Company in determining the amount due and payable.

33. That the Claimant is a person who allegedly sustained personal injuries

arising out of the use or operation of the insured motor vehicle and began allegedly

receiving treatment from the remaining defendants (collectively, “the Medical Provider

Defendants”).

34. That to date, the Medical Provider Defendants have submitted over

$124,000 in No-Fault claims as the alleged assignees of the Claimant, exclusive of interest and attorneys’ fees.

35. That in addition to the sheer magnitude of the claims submitted, the

claim’s legitimacy was questionable because the first report of the June 12, 2019 loss was from the Claimant’s attorney.

36. That the police report, and photographs submitted by the Claimant indicated minimal or no damage to the Kemper insured vehicle.

37. That the driver of the adverse vehicle witnessed that the Claimant was not in contact with the insured vehicle at the time of the incident and was feigning injuries.

38. That the circumstances surrounding the crash raised a strong possibility

that the alleged injuries of the Claimant and any subsequent treatment by the Medical Provider Defendants were not causally related to the collision, and/or that the collision was not an insured incident under the No-Fault Regulations.

39. That based on these factors, KEMPER, pursuant to its rights under the No-

Fault Regulations, duly and properly sought an examination under oath (“EUO”) of the Claimant to confirm the legitimacy of this loss and the necessity or causality of any alleged treatment and referrals.

40. That the Claimant appeared for his EUO; however, his testimony raised

additional issues as to the legitimacy and medical necessity of the purported medical

treatments, which further contributed to a strong possibility that the Claimant’s

submitted treatments were not causally related to the alleged collision and/or did not arise from an insured incident. In particular:

a. The injuries claimed by the Claimant are inconsistent with the Claimant’s description of the accident, specifically, the Claimed alleged the Kemper insured vehicle was struck in the rear while parked, yet the photographs supplied by the Claimant mainly are indicative of damage to the front bumper, and not the rear bumper.

b. That Claimant previously was involved in a motor vehicle accident where the damage alleged was to the front bumper.

c. That the Claimant received no medical care at Kings County Hospital, was not admitted, and was discharged the same day.

d. That the Claimant produced a fantastical account as to how he first began treatment, that an unknown person allegedly from Kings County Hospital contacted him and referred him to a clinic where the Claimant began receiving treatment the day after the loss.

e. That the medical facility referred the Claimant to his attorney.

f. That the Claimant initially testified he was referred to an MRI facility by medical provider and later changed his testimony, stating his attorney recommended that he present for an MRI.

g. That the Claimant’s attorney referred him to a physical therapy provider.

DEFENDANTS’ VIOLATIONS OF THE NO-FAULT REGULATIONS

41. That after the EUO, KEMPER duly requested that the Claimant subscribe his transcript and return it.

42. In addition, based on the above, KEMPER, pursuant to its rights under the No-Fault Regulations, duly and properly sought EUOs of various Medical Provider Defendants proceeding as the assignees of the Claimant to verify the bona fides of the claims, the necessity of any alleged treatment and referrals, as well as to assess the causality between the purported treatments and the Claimant’s alleged injuries.

43. That despite due demand, defendants AHARON GUTTERMAN, MD,

PLLC, ATB SERVICES, INC., AVERROES PHYSICAL THERAPY, PC, BJ569

ACUPUNCTURE, PC, FJ ORTHOPAEDICS & PAIN MANAGEMENT, P.L.L.C., HAIHU MEDICAL, P.C., KOLB RADIOLOGY, P.C., NEW MILLENNIUM MEDICAL IMAGING, P.C., NYEEQASC, LLC, SEDATION VACATION PERIOP MED, P.L.L.C., and VVX, INC failed to appear for duly scheduled EUOs on two occasions each, which breached a condition precedent to coverage under the No-Fault Regulations, and KEMPER has denied their claims on that basis.

44. That based upon the facts and circumstances outlined above and KEMPER’s investigation of the claim, KEMPER maintains a founded belief that the alleged injuries of the Claimant and any subsequent No-Fault treatment submitted by the Medical Provider Defendants were not causally related to the collision and/or did not arise from an insured incident, and KEMPER has duly denied all claims on that basis.

45. That the defendants have commenced or will commence legal actions or file for arbitration against KEMPER seeking money damages for the No-Fault claims that KEMPER properly denied as detailed above.

46. That KEMPER requires and requests a declaration of the rights and other legal relations of the respective parties in accordance with the applicable laws relating to declaratory judgment.

47. That KEMPER has no adequate remedy at law.

48. That KEMPER has not previously sought the relief requested herein in this

or any other court.

FOR A FIRST CAUSE OF ACTION

(Failure to Subscribe EUO: Against All Defendants)

49. KEMPER repeats and realleges the allegations contained in paragraphs 1 through 48 of the complaint as if fully set forth herein.

50. That the Claimant breached a condition precedent to coverage under the No-Fault Regulations by failing to subscribe and return her EUO transcript.

51. That this breach of the No-Fault Regulations relieves KEMPER of any

obligation to pay the No-Fault claims of the defendants with respect to the June 12, 2019 collision under claim number C033782NY19.

52. That by reason of the foregoing, KEMPER is entitled to a judgment declaring that it owes no duty to pay the No-Fault claims submitted by the defendants June 12, 2019 collision under claim number C033782NY19.

FOR A SECOND CAUSE OF ACTION (EUO No-Shows: Against Some Defendants)

53. KEMPER repeats and realleges the allegations contained in paragraphs 1 through 52 of the complaint as if fully set forth herein.

54. That defendants AHARON GUTTERMAN, MD, PLLC, ATB SERVICES,

INC., AVERROES PHYSICAL THERAPY, PC, BJ569 ACUPUNCTURE, PC, FJ

ORTHOPAEDICS & PAIN MANAGEMENT, P.L.L.C., HAIHU MEDICAL, P.C., KOLB

RADIOLOGY, P.C., NEW MILLENNIUM MEDICAL IMAGING, P.C., NYEEQASC,

LLC, SEDATION VACATION PERIOP MED, P.L.L.C., and VVX, INC breached a

condition precedent to coverage under the No-Fault Regulations by failing to appear at duly and properly scheduled EUOs on two or more occasions each.

55. That these breaches of the No-Fault Regulations relieve KEMPER of any obligation to pay the No-Fault claims of defendants AHARON GUTTERMAN, MD, PLLC, ATB SERVICES, INC., AVERROES PHYSICAL THERAPY, PC, BJ569 ACUPUNCTURE, PC, FJ ORTHOPAEDICS & PAIN MANAGEMENT, P.L.L.C., HAIHU MEDICAL, P.C., KOLB RADIOLOGY, P.C., NEW MILLENNIUM MEDICAL IMAGING, P.C., NYEEQASC, LLC, SEDATION VACATION PERIOP MED, P.L.L.C., and VVX, INC with respect to the June 12, 2019 collision under claim number C033782NY19.

56. That by reason of the foregoing, KEMPER is entitled to a judgment

declaring that it owes no duty to pay the No-Fault claims submitted by AHARON GUTTERMAN, MD, PLLC, ATB SERVICES, INC., AVERROES PHYSICAL THERAPY, PC, BJ569 ACUPUNCTURE, PC, FJ ORTHOPAEDICS & PAIN MANAGEMENT, P.L.L.C., HAIHU MEDICAL, P.C., KOLB RADIOLOGY, P.C., NEW MILLENNIUM MEDICAL IMAGING, P.C., NYEEQASC, LLC, SEDATION VACATION PERIOP MED, P.L.L.C., and VVX, INC. for treatment allegedly provided to the Claimant with respect to the June 12, 2019 collision under claim number C033782NY19.

FOR A THIRD CAUSE OF ACTION (Founded Belief: Against All Defendants)

57. KEMPER repeats and realleges the allegations contained in paragraphs 1

through 56 of the complaint as if fully set forth herein.

58. That based upon the circumstances stated above and the result of its investigation into the claim, KEMPER maintains a founded belief that the alleged injuries of the Claimant and any subsequent No-Fault treatment submitted by the Medical Provider Defendants were not causally related to the June 12, 2019 collision under claim number C033782NY19.

59. That by reason of the foregoing, KEMPER is entitled to a judgment declaring that it owes no duty to pay the No-Fault claims of the defendants with respect to the June 12, 2019 collision under claim number C033782NY19.

FOR A FOURTH CAUSE OF ACTION (Permanent Stay)

60. KEMPER repeats and realleges the allegations contained in paragraphs 1 through 59 of the complaint as if fully set forth herein.

61. That KEMPER will suffer irreparable harm if a permanent stay of all arbitrations, lawsuits, and/or claims by the defendants is not issued to enforce the declaratory relief sought.

62. That KEMPER is therefore entitled to a judgment permanent staying all arbitrations, lawsuits, and/or claims by the defendants relating to the No-Fault claims of the Claimant arising from the June 12, 2019 collision under claim number C033782NY19.

WHEREFORE, plaintiff KEMPER demands judgment as follows:

a. On the First Cause of Action against all defendants, declaring that KEMPER has no duty to pay No-Fault claims with respect to the June 12, 2019 collision referenced in the complaint;

b. On the Second Cause of Action against various defendants, declaring that KEMPER has no duty to pay No-Fault claims with respect to the June 12, 2019 collision referenced in the complaint;

c. On the Third Cause of Action against all defendants, declaring that KEMPER has no duty to pay No-Fault claims with respect to the June 12, 2019 collision referenced in the complaint

d. On the Fourth Cause of Action against all defendants, permanently staying all No-Fault lawsuits and arbitrations brought by the defendants relating to the June 12, 2019 collision referenced in the complaint;

e. For costs and disbursements of this action; and

f. For any other and further relief as the Court deems just and proper.

Dated: New York, New York August 27, 2020

Yours, etc.

___________________________

By: Harlan R. Schreiber, Esq.

GOLDBERG, MILLER & RUBIN, P.C.

Attorneys for Plaintiff

1501 Broadway Suite 715

New York, New York 10036

Our File No.: KE.01026