Allstate Insurance Company et al v. A & F Medical P.C. et al

Filing 448

MEMORANDUM AND ORDER in case 1:14-cv-06756-JBW-RLM; granting in part and denying in part (433/376) Motion for Sanctions; denying (439/382) Motion to Strike in case 1:15-cv-03639-JBW-RLM. The Clerk of Court is respectfully requested to docket as t heir new operative pleading the proposed amended answer attached to the Pinkusoviches' May 10, 2017 letter (435/378). AOH's operative answer (296) is deemed amended to include the affirmative defense of ratification as pled by the Pinkusov iches in paragraph 32 of their proposed amended answer (435/378). The parties' cross-motions for an award of attorneys' fees are denied. Ordered by Chief Mag. Judge Roanne L. Mann on 5/19/2017. (Attachments: # 1 Appendix Proposed Amended Answer) Associated Cases: 1:14-cv-06756-JBW-RLM, 1:15-cv-03639-JBW-RLM (Proujansky, Josh)

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* MAY 032017 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BROOKLYN OFFICE

ALLSTATE INSURANCE COMPANY, ET AL.,
Plaintiff(s)
against
-

Case No. 14-CV-06756-JBW-RLM

-

Member Case I 5-CV-3639-JBW-RLM

Amended Answer and
A & F MEDICAL PC, ADVANCED CHIROPRACTIC
OF NEW YORK PC, ALIGNMENT CHIROPRACTIC CARE, Affirmative Defense
by Defendants
PC, ART OF HEALING MEDICINE, PC, ET ANO.
Art of Healing Medicine, P.C.
Defendant(s)-

Defendants ART OF HEALING MEDICINE, P.C. (hereinafter, "Defendant", "AOH") by
Alexander Pinkusovich, M.D. and Svetlana Pinkusovich, M.D. individual defendants in the
above captioned matter acting pro se and for its proposed amended answer for the addition
of the affirmative defense of ratification to the Complaint of the Plaintiffs granted by Court
(369 in 15-CV-03639-JBW-RLM Objection to Court denied affirmative defenses will be
filed on May 8, 2017) hereby incorporate by reference the entirety of the allegations as set
forth in the Amended Complaint in Art of Healing et al. v. Allstate Insurance Company, et al.,
E.D.N.Y, Docket No. 16-CV-04208, and state the following:

AS TO THE PRELIMINARY STATEMENT
1.

Defendant denies knowledge or information sufficient to form a belief as to the
allegations made as concerned co-defendants named herein as set forth in paragraphs 1
through 45, and refer all questions of law to this Honorable Court.

2.

Defendant denies the allegations as they relate to Defendant as set forth in paragraphs
1, 3, 4, 15-16, 18-19, 21-25, 34-37, 40 45, and refer all questions of law to this
-

Honorable Court.
3.

Defendant denies knowledge or information sufficient to form a belief as to the
allegations as they relate to Defendant as set forth in paragraphs 9-13, 20, 26-33, and
Page 1 of

refer all questions of law to this Honorable Court.
4.

Defendant denies knowledge or information sufficient to form a belief as to the
allegations as they relate to Defendant as set forth in paragraph 7, except admits that
Defendant use Medi-DX 7000 to selectively deliver an electrical current to a Covered Person's
nerve's A-Delta fiber.

5.

Defendant denies the allegations as they relate to Defendant as set forth in paragraph
14 except admits that Defendant submitted bills and supporting documentation to
Plaintiffs seeking reimbursement for VsNCT Testing.

6.

Defendant denies the allegations as they relate to Defendant as set forth in paragraph

17

except admits that Defendant billed Allstate for VsNCT Testing using Current

Procedural Terminology ("CPT") Code 95904.
7.

Defendant denies knowledge or information sufficient to form a belief as to the
allegations as they relate to Defendant as set forth in paragraph 38, except admits that
Svetlana Pinkusovich, M.D. and Alexander Pinkusovich, M.D. submitted bills through
Defendant, a medical office operating in the New York metropolitan area, to Allstate
for reimbursement of VsNCT testing using CPT Code 95904, pursuant to the No-fault
Law.

8.

Defendant denies knowledge or information sufficient to form a belief as to the
allegations as they relate to Defendant as set forth in paragraph 39, except admits that
Defendant submitted bills for VsNCT testing.

AS TO THE NATURE OF THE ACTION
9.

As to the complaint paragraph 46, no response is required.

AS TO THE NATURE OF THE RELIEF SOUGHT
10. Defendant deny knowledge or information sufficient to form a belief as to the
Page 2 of 8

allegations made as they concern co-defendants named herein, and deny all allegations
as they relate to Defendant as set forth in paragraphs 47 through 51 of the complaint,
and refer all questions of law to this Honorable Court.

AS TO THE PARTIES
11. Defendant denies knowledge or information sufficient to form a belief as to the
allegations set forth in paragraphs 52 through 55 of the complaint.
12. Defendant denies knowledge or information sufficient to form a belief as to the
allegations made as concerned co-defendants named herein as set forth in paragraphs
56- 91, 96-117, 120-171, and refer all questions of law to this Honorable Court.
13. Defendant deny the allegations as they relate to Defendant as set forth in paragraphs
93, 95, 119, and refer all questions of law to this Honorable Court.

JURISDICTION AND VENUE
14. Defendant denies knowledge or information sufficient to form a belief as to the
allegations set forth in paragraphs 172-174 of the complaint and refer all questions of
law to this Honorable Court.
FACTUAL BACKGROUND
15. Defendant denies knowledge or information sufficient to form a belief as to the
allegations made as concerned co-defendants named herein as set forth in paragraphs
175-269, and refer all questions of law to this Honorable Court.
16. Defendant denies the allegations as they relate to Defendant as set forth in paragraphs
182-185, 187-195, 210, 217-220, 224, 244-245, 247-248, 251, 253, 258-260, 262-264,
267-269, and refer all questions of law to this Honorable Court.
17. Defendant denies knowledge or information sufficient to form a belief as to the
allegations set forth in paragraphs 175, 178, 181, 186, 200-209, 227-243, 249-250,
Page 3 of 8

254, 256-257, 261, of the complaint and refer all questions of law to this Honorable
Court.
18. Defendant denies knowledge or information sufficient to form a belief as to the
allegations set forth in paragraph 177 except admits that Defendant provided VsNCT
Testing to Covered Persons in exchange for assignment of benefits, and submitted
claims for payment to No-Fault insurance carrier, in general, and to Allstate, in
particular for such services.
19. Defendant denies the allegations set forth in paragraph 222 except admits that Current
Perception Threshold Testing ("CPT Testing") and VsNCT Testing are both forms of
sNCT testing which are performed by administering an electrical current to specific
sites through electrodes placed on the surface of the skin, and identifying the minimum
electrical stimulus necessary for the subject to perceive the stimulus and indicate that
they feel stimulus.
20. Defendant denies the allegations set forth in paragraph 265 except admits that
Defendant included the following statement in reports submitted to Plaintiffs in
support of claim for reimbursement of VsNCT testing: "Federal Medicare guidelines
list voltage-amplitude sensory nerve conduction threshold (VsNCT) as 'reasonable and
necessary' in wide variety of sensory conditions ranging from diabetic
polyneuropathies and peripheral entrapment neuropathies to neck and back pain
(radiculopathies)."

DISCOVERY OF THE FRAUD
21. Defendant denies knowledge or information sufficient to form a belief as to the
allegations set forth in paragraph 270 of the complaint and refer all questions of law to
this Honorable Court.
Page 4 of 8

STATEMENT OF CLAIMS
22. Defendant denies knowledge or information sufficient to form a belief as to the
allegations made as concerned co-defendants named herein as set forth in paragraphs
271-1193, and refer all questions of law to this Honorable Court.
23. Defendant denies the allegations as they relate to Defendant as set forth in paragraphs
662-69 1, 1188-1193 and refer all questions of law to this Honorable Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
24. The complaint fails to state a cause of action as against Defendant or otherwise state a
claim upon which relief may be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
25. Plaintiffs' claims are barred based on breach of contract and/or anticipatory breach.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
26. Plaintiffs' claims are barred by the theory of the Economic Loss Rule.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
27. Plaintiffs' claims are barred by the doctrine of waiver and estoppel.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
28. Plaintiffs' claims are barred by the doctrine of accord and satisfaction.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
29. Plaintiffs' claims are barred by the doctrine of unclean hands.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
30. Plaintiffs' claims are barred by Plaintiffs' fraudulent conduct.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

Page 5 of 8

31. Plaintiffs' claims are barred by the doctrine of laches and delay.
AS AND FOR A NINETH AFFIRMATIVE DEFENSE
32. Plaintiffs' claims are barred by the applicable Statute of Limitations.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
33. Plaintiffs failed to mitigate its damages, if any.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
34. Plaintiffs' alleged damages were sustained, in whole or in part, through the acts and
omissions of the Plaintiffs and/or through acts and omission of the third parties hired by
the Plaintiffs.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
35. Plaintiffs' claims are barred due to Plaintiffs' failure to comply with the applicable laws,
rules and regulations of the State of New York pertaining to no-fault insurance,
including but not limited to New York Insurance Law 5106 and 11 NYCRR 65.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
36. Plaintiffs' claims are barred, in whole or in part, because no act or omission by
Defendant was a cause in fact or the proximate cause of any damages alleged by
Plaintiffs.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
37. Defendant are not proper parties under RICO and did not commit any improper acts or
omission that may give rise to a valid cause of action under RICO.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
38. Defendant hereby incorporate by reference all of the defenses asserted in the Answers of
the other co-defendants in this case to the extent they are not inconsistent with the
position of Defendant in this case.
Page 6 of 8

AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
39. Plaintiffs'

claims

are

barred

by

the

doctrines

of

estoppel

by

participation/ratification from maintaining this lawsuit as plaintiffs ratified, approved,
confirmed and participated in the matters which are the basis of the present complaint.
In this case the Allstate companies did all of the foregoing and continue as late as 2016,
even after their RICO action was filed and they did so to lure the Providers into
believing that Providers were treating patients and billing according to the law, and
according to what Allstate believed was proper. The Allstate companies' ruse was
nothing more that part of the Allstate fraudulent scheme, as reflected in the Art of
Healing et al. v. Allstate Insurance Company, et al., E.D.N.Y, Docket No. I 6cv04208

incorporated by reference. The Allstate Plaintiffs needed the claims to reach an
aggregate amount in order to make their anticipated R.I.C.O. claim. And to do so, the
Allstate companies knew that a certain amount of claims and monies had to be paid in
order to justify the anticipated fraudulent lawsuit. The prosecution of Allstate's Original
RICO action involves in sum and substance alleged fraudulent billing as according to
Allstate, the Defendants billed for VsNCT testing under CPT Code 95904, which
Allstate alleges was the improper code, and also Allstate alleges that the billing for
VsNCT testing was fraudulent because Allstate alleged that the Defendants knew or
should have known that the FDA approved machine that was used for the VsNCT
testing could not do what the billing indicated had been done. Yet since these lawsuits
were filed, as late as 2016 the Allstate Plaintiffs continued to ratify that the billing was
proper. The Allstate Plaintiffs decided approximately nine (9) months after they concede
they had "actual" knowledge of the alleged fraud to settle, through their attorneys, and
pay a lawsuit, involving the same VsNCT Testing that Plaintiffs' claim as fraudulent
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7

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here. Even a year after this lawsuit was filed, Allstate Insurance Company, on
September 30, 2015 again settled another lawsuit for the same VsNCT Testing that
Plaintiffs were in active litigation as being fraudulent.

WHEREFORE Art of Healing Medicine, P.C. Defendants demand that the
Complaint against it be dismissed in its entirety together with such other and different relief
as this Court deems just and proper.
Respectfully submi

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By:
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Alexander Pinkusovich, M.D. AOH defendapo se

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Public State o ew York
No. 01 MS6240861
Qualified in Kings County
My Commission Exoires May 9, 201
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By:
Svetlana Pinkuso

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, M.D. AOH defendant pro se

May 1, 2017

VIA First Class Registered mail
United States District Court
Eastern District Of New York
225 Cadman Plaza West
Brooklyn, NY 11201

VIA First Class mail and email:

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ALYNA SMOLYAR

Notary Public - State of New York
No. 01 MS6240861
Qualified in Kings County
My Commission Expires M 9, 201

DMarvinmorrisonmahoney.com

Daniel S. Marvin
Morrison Mahoney, LLP
120 Broadway, Suite 1010
New York, NY 10271

Page 8 of 8

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POSTAQ5
AID
BOKLYN NY
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MAY01 17
AMOUNT

ART OF HEALING MED ICINE. P.C.
BrookIYfl

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7016 1370 0002 2979 4011

1000
11201

$4.75

R2305K1 36561-02

11229

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