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AMERICAN TRANSIT INSURANCE COMPANY v. ELECTRODIAGNOSTIC & PHYSI...

Docket 619607/2024, New York State, Nassau County, Supreme Court (Nov. 6, 2024)
Case TypeSpecial Proceedings - CPLR Article 75
Plaintiff AMERICAN TRANSIT INSURANCE COMPANY
Defendant ELECTRODIAGNOSTIC & PHYSICAL MED PC A/A/O FELIX A LOPEZ A
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AFFIDAVIT Attorney Verification for Answer

Document AMERICAN TRANSIT INSURANCE COMPANY v. ELECTRODIAGNOSTIC & PHYSICAL MED PC, 619607/2024, 5 (N.Y. Sup. Ct., Nassau County Dec. 5, 2024)
I affirm that the foregoing statements are true under penalties of perjury.
I, MICHAEL HOENIG, am an attorney admitted to practice in the Courts of the State of New York, and say that: I am an attorney with Israel Purdy, LLP, the attorneys for Electrodiagnostic & Physical Med, P.C., I have read the annexed Answer and Counterclaims and know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and to those matters I believe them to be true.
My belief as to those matters therein not stated upon knowledge, is based upon the following: bills, reports, conversations, etc.
The reason I make this affirmation instead of the Respondent is that the Respondent’s offices are not located in the County wherein my office is located.
130-1 of the rules of the chief administrator (22 NYCRR) I certify that to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the within Answer and Counterclaims is not frivolous.
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ANSWER WITH COUNTER-CLAIM(S)

Document AMERICAN TRANSIT INSURANCE COMPANY v. ELECTRODIAGNOSTIC & PHYSICAL MED PC, 619607/2024, 4 (N.Y. Sup. Ct., Nassau County Dec. 5, 2024)
Plaintiff cannot establish that it complied with the time frames as set forth in the New York No-Fault Regulations and thereby cannot meet its burden of filing “proof of the facts constituting the claim.” See: American Tr. Ins. Co. v Small 2020 NY Slip Op 33138(U) [Sup.
Certain defenses, including the possibility of Workers’ Compensation coverage, which are not preserved within a timely and proper denial of claims form, are precluded from being asserted upon adjudication.
That at the time of the accident there was an existing insurance policy issued by the Plaintiff containing Person Injury Protection benefits under the New York State No-Fault Law.
That Defendant-Assignees are entitled to payment of the bill, statutory interest at a rate of 2% per month (pursuant to 11 NYCRR §65-3.9(a)) until the amount due is paid in full, computed from thirty days after the date the claim was submitted to the Plaintiff.
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the courts of the State of New York, certifies that, upon information and belief and reasonable inquiry, the contention contained in the annexed documents are not frivolous Dated: December 5, 2024
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SUMMONS + COMPLAINT Summons & Complaint

Document AMERICAN TRANSIT INSURANCE COMPANY v. ELECTRODIAGNOSTIC & PHYSICAL MED PC, 619607/2024, 1 (N.Y. Sup. Ct., Nassau County Nov. 6, 2024)
This proceeding is brought pursuant to CPLR § 7511, Insurance Law § 5106(c) and 11 NYCRR § 65-4.10 (h) (l) (ii) for a De Novo review of the above captioned matter.
Prior to the occurrence, which forms the basis of this dispute Felix A Lopez A was allegedly injured and made a claim against a policy of insurance issued by Plaintiff, AMERICAN
Following the inception of the insurance policy, an accident occurred and Felix A Lopez A allegedly sustained injuries.
By virtue of the fact that the amount in dispute at arbitration is in excess of $5,0000.00 De Novo Review of this matter is appropriate and necessary.
VINCENT F. GERBINO, Esq., an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury:
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EXHIBIT(S) - B Exhibit B

Document AMERICAN TRANSIT INSURANCE COMPANY v. ELECTRODIAGNOSTIC & PHYSICAL MED PC, 619607/2024, 3 (N.Y. Sup. Ct., Nassau County Nov. 6, 2024)
New York Insurance Case Management Center Maureen Kurdziel Vice President 32 Old Slip, 33rd Floor, New York, NY 10005 Telephone: 917 438 1500, Facsimile: 917 438 1600 10/02/2024 Addressee(s): Israel Purdy, LLP 11 Grace Avenue Suite 111 Great Neck, NY 11021 By: EMAIL American Transit Insurance Company One Metro Tech Center, 7th Fl.
Part I. Respondent denied applicant’s claim based on its’ assertion that assignor was injured in the course of his employment and therefore eligible for workers’ compensation coverage.
Respondent denied applicant’s claim based on its’ assertion that assignor was injured in the course of his employment and therefore eligible for workers’ compensation coverage.
However, for all arbitration requests filed on or after April 5, 2002, if the benefits and interest awarded thereon is equal to or less than the re- spondent’s written offer during the conciliation process, then the attorney’s fee shall be based upon the provisions of 11 NYCRR 65-4.6(b).
A denial of review pursuant to 11 NYCRR 65- 4.10 (c) (4) (Part II (1) above) shall not form the basis of an action de novo within the meaning of section 5106(c) of the Insurance Law.
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EXHIBIT(S) - A Exhibit A

Document AMERICAN TRANSIT INSURANCE COMPANY v. ELECTRODIAGNOSTIC & PHYSICAL MED PC, 619607/2024, 2 (N.Y. Sup. Ct., Nassau County Nov. 6, 2024)
Dear Parties: Israel Purdy, LLP 11 Grace Avenue Suite 111 Great Neck, NY 11021 By: EMAIL American Transit Insurance Company One Metro Tech Center, 7th Fl.
American Transit Insurance Company 10/14/2022 3141251 11020507-01 16616 By direction of the Arbitrator we herewith transmit to you the duly executed Award in the above captioned matter.
Findings, Conclusions, and Basis Therefor Insurance Law § 5102 (b) (2) states that a No-Fault claimant is entitled to reimbursement for economic loss less amounts "recovered or recoverable" from Workers' Compensation benefits.
As the Board, which is the exclusive forum to determine whether an individual was in the course of his employment at the time of a motor vehicle accident, concluded that assignor was not covered by Workers' Compensation, Respondent's denials predicated upon the defense that said coverage was primary must be vacated.
Page 4/6 Inasmuch as Applicant did not establish that it filed for arbitration within 30 days of receipt of Respondent's denials, the statutory tolling provision applies.
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