# American Transit Insurance Company v. Bilyk

> District Court, E.D. New York · January 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10305571

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
AMERICAN TRANSIT INSURANCE :
COMPANY, : MEMORANDUM DECISION
: AND ORDER
Plaintiff, :
: 19-cv-5171(BMC)
-against - :
:
YULIA BILYK, et al., :
:
:
Defendants. :
----------------------------------------------------------- X
COGAN, District Judge.
Plaintiff moves for reconsideration of my order denying its motion for default judgment
and dismissing the case. Plaintiff is an automotive accident insurance company andclaims that
defendants submitted fraudulent policy claims under New York’s no-fault insurance scheme. I
denied default judgment because I concluded that plaintiff did not establish defendants’ liability.
Whena plaintiff files an unwieldy complaint, it runs theriskthat a court will be unable to
divine its claims. It is not the Court’s responsibility to parse through agenerically pleaded186-
page complaint with more than 300 pages of annexed exhibits to figure out how its allegations
andevidence relate to the 58 claims of relief contained within. In its motion for reconsideration,
unlike its motion for a default judgment, plaintiff for the first time draws the connections
between the broadly pleadedallegations in the complaint and the detailed, but difficult to
decipher, supporting exhibits. The present motion does the work that should have been done in
the complaint, or, at the very least, in the default judgment motion. Upon this new showing, I
conclude that there is adequate proof to establish defendants’ liability on plaintiff’s RICO and
fraud claims, but not as to the duplicative unjust enrichment claims. However, plaintiff’s
showing also underscores that these defendants were not properly joined.
Accordingly, the motion for reconsideration is granted, the order denying the motion for
default judgment is vacated, and the motion for default judgment is granted in part,subject to the
filing fee conditiondescribed below,imposedto remedy the improper joinder.

BACKGROUND
The complaint alleges fourteen different RICO enterprises and identifies three categories
of defendant –“Retail,” Wholesale,” and “No-Fault Clinics” –with each alleged enterprise
generally comprised of one of every category. The “Retail Defendants” consist of medical
supply companies and the individual defendants who own them; the “Wholesale Defendants”
consist of companies and their owners who sell medical supplies to the Retail Defendants; the
“No-Fault Clinics,” which have not been sued in this action, provided or purported to provide
medical services or devices to patients.
The activities of six alleged RICO enterprises are at issuein the present motion, the

members of eight other alleged enterprises having settled the action. These alleged enterprises
are the Active Care Medical Supply Enterprise, the Bento Ortho Enterprise, the Maiga Products
Enterprise, the Maxford Enterprise, the Pravel Enterprise, and the Sure Way NY Enterprise.
Plaintiff alleges that these enterprises committed fraud in substantially similar ways but operated
independently of one another, during different time periods and with different participants in
order to submit fraudulent claims for reimbursement from plaintiff pursuant to New York’s no-
fault insurance scheme.
In general, each enterprise is alleged to have sought reimbursement for durable medical
equipment and orthotic devices (together, “medical supplies”) pursuant to a fraudulent billing
scheme. The Retail Defendants, through their individual defendant managers, submitted
insurance claims that were fraudulent because they were false and misleading as to (i) the nature,
quality, and cost of the medical supplies purportedly supplied; (ii) the amounts to which the
Retail Defendants were entitled to be reimbursed; (iii) whether the medical supplies purportedly
supplied were actually supplied; (iv) the actual wholesale cost of the medical supplies to the

provider; (v) the prescription actually supplied, as items were often described generically to
conceal the type of item prescribed; (vi) whether the medical supplies were medically necessary
or merely prescribed and supplied pursuant to a predetermined protocol involving kickbacks and
designed to maximize the charges the Retail Defendants and their managers could submit to
insurers. One aspect of the schemes that connects the disparate enterprises to each other is that
the Retail Defendants sometimes used the same “phantom codes,” reimbursement codes that
were not listed in plaintiff’s fee schedule at the time the claim was submitted.
Plaintiff annexeddozens of charts to the complaint containingrepresentative examples of
the type of billing fraud committed by and through the defaulted Retail Defendants and, in its

motion for reconsideration, has drawn the connections between those exhibits and the allegations
in the complaint for therespective defaulteddefendants.
Active Care Medical SupplyCorporation is a retail supplier of medical supplies operated
by Russell Ionin. The Active Care Medical Enterpriseis alleged to have engaged in a pattern of
racketeering activity, specifically through mail fraud, beginning around July 14, 2010. Through
the Active Care Medical Enterprise, Ionin submitted a few paid and dozens of unpaid claims for
medical supplies. For example, this enterprise submitted claims for (i) heat lamps and water
circulating units using phantom codes, seeking reimbursement for $160 and over $620,
respectively, despite providing cheaper supplies reimbursable for $20 and $200, respectively; (ii)
egg crate mattresses and bed boards, seeking reimbursement for over $95, using codes reserved
for more expensive items, when the items provided were worth less than $50; and (iii) knee
braces using codes reserved for medical supplies that require a customized fitting, when the item
supplied was in fact a cheap, one-size-fits-all knee brace that was not custom fabricated and for
which no customized fitting was performed.

Bento Ortho Inc. is a retail supplier of medical supplies operated by Oleksiy
Gerasymenko. The Bento Ortho Enterpriseis alleged to have engaged in a pattern of
racketeering activity, specifically through mail fraud, beginning around December 30, 2013.
Through the Bento Ortho Enterprise, Gerasymenko submitted a few paid and dozens of unpaid
claims for medical supplies. For example, this enterprise submitted claims for(i) massagers and
infrared heating lamps, seeking reimbursement for over $200 when the items provided were
reimbursable, if at all, for less than $25; (ii) egg crate mattresses, seeking reimbursement for over
$150, when the item provided was reimbursable, if at all, for $25; and (iii) knee braces using
codes reserved for medical supplies that require a customized fitting, when the item supplied was

in fact a cheap, one-size-fits-all knee brace that was not custom fabricated and for which no
customized fitting was performed.
Maiga Products Corporation is a retail supplier of medical supplies operated by Maiga
Borisevica.1 The Maiga Products Enterpriseis alleged to have engaged in a pattern of
racketeering activity, specifically through mail fraud, beginning around July 9, 2012. Through
the Maiga Products Enterprise, Borisevica submitted a few paid and dozens of unpaid claims for
medical supplies. For example, this enterprise submitted claims for(i) TENS/EMS units using

1Plaintiff does not seek default judgment on its claims against Maiga Borisevica due to its inability to serve this
motion on her. Because plaintiff has not otherwise prosecutedits claims against Maiga Borisevica, the complaint
will be dismissed as to her.
phantom codes, seeking reimbursement for over $675, when the item provided was reimbursable
at most for $20; and (ii) massagers, seeking reimbursement for over $75, when the item provided
was reimbursable at most for $30.
Maxford Inc. is a retail supplier of medical supplies operated by Yuriy Denisov, who died
in 2015. Artur Denisov is the administrator of the estate of Yuriy Denisov. The Maxford

Enterpriseis alleged to have engaged in a pattern of racketeering activity, specifically through
mail fraud, beginning around February 14, 2013. Through the Maxford Enterprise, Yuriy
Denisov submitted several paid and dozens ofunpaid claims for medical supplies. For example,
this enterprise submitted claims for(i) heat lamps and water circulating units using phantom
codes, seeking reimbursement for $270 and $615, respectively, despite providing cheaper
supplies reimbursable for $24 and $158, respectively;(ii) egg crate mattresses and bed boards,
seeking reimbursement for over $125, using codes reserved for more expensive items, when the
items provided were reimbursable forless than $50; and (iii) knee braces using codes reserved
for medical supplies that require a customized fitting, when the item supplied was in fact a

cheap, one-size-fits-all knee brace that was not custom fabricated and for which no customized
fitting was performed.
Pravel Inc. is a retail supplier of medical supplies operated by Eduard Zarubin. The
Pravel Enterpriseis alleged to have engaged in a pattern of racketeering activity, specifically
through mail fraud, beginning around August 23, 2013. Through the Pravel Enterprise, Zarubin
submitted several paid andunpaid claims for medical supplies. For example, this enterprise
submitted claims for(i) massagers and infrared heating lamps, seeking reimbursement for over
$200 when the items provided were reimbursable, if at all, for less than $30; (ii) egg crate
mattresses and bed boards, seeking reimbursement for over $125, using codes reserved for more
expensive items, when the items provided were reimbursable for less than $50; and (iii) knee
braces using codes reserved for medical supplies that require a customized fitting, when the item
supplied was in fact a cheap, one-size-fits-all knee brace that was not custom fabricated and for
which no customized fitting was performed.
Sure Way NY Inc. is a retail supplier of medical supplies operated by Tatiana Rodionova.

The Sure Way Enterprise is alleged to have engaged in a pattern of racketeering activity,
specifically through mail fraud, beginning around May 31, 2013. Through the Sure Way
Enterprise, Rodionova submitted several paid and dozens ofunpaid claims for medical supplies.
For example, this enterprise submitted claims for(i) massagers and hydrotherapy whirlpools,
seeking reimbursement for $285 and $565, respectively, using codes reserved for more
expensive items, despite providing cheaper supplies reimbursable for at most $30and $45,
respectively; (ii) egg crate mattresses and bed boards, seeking reimbursement for over $125,
using codes reserved for more expensive items, when the items provided were reimbursable for
less than $50; and (iii) knee braces using codes reserved for medical supplies that require a

customized fitting, when the item supplied was in fact a cheap, one-size-fits-all knee brace that
was not custom fabricated and for which no customized fitting was performed.
For each enterprise, plaintiff brings (i) a RICO claim against the individual defendant; (ii)
a claim for common law fraud against the individual defendant and his wholly-owned
corporation; (iii) a claim for unjust enrichment against the individual defendant and his wholly-
owned corporation; and (iv) an “aiding and abetting claim” against John Does 1-20 and ABC
Corporations 1-20. Plaintiff’s final claim is a catch-all declaratory judgment claim, seeking to
absolve plaintiff of the need to pay any further claims submitted by the defendants.
DISCUSSION
“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the
interests of finality and conservation of scarce judicial resources.” Drapkin v. Mafco Consol.
Grp., Inc., 818 F. Supp. 2d 678, 695 (S.D.N.Y. 2011) (quotation marks omitted). “Such motions
are properly granted only if there is a showing of: (1) an intervening change in controlling law;

(2) the availability of new evidence; or (3) a need to correct a clear error or prevent manifest
injustice.” Giuffre v. Maxwell, No. 15-cv-7433, 2020 WL 917057, at *1 (S.D.N.Y. Feb. 26,
2020) (quotation marks omitted). Here, plaintiff contends that I misconstrued the allegations in
the complaint and that the applicable law, when applied to those allegations, demonstrates that
plaintiff’s motion for default judgment should have been granted.
Plaintiff timely filed this motion for reconsideration on December 28, 2020, then
subsequently filed a Notice of Appeal on January 11, 2021. Generally, filing a notice of appeal
divests a district court of jurisdiction. SeeGriggs v. Provident Consumer Discount Co., 459 U.S.
56, 58 (1982) (“The filing of a notice of appeal is an event of jurisdictional significance–it

confers jurisdiction on the court of appeals and divests the district court of its control over those
aspects of the case involved in the appeal.”). However, where, as here, the notice of appeal is
filed while a timely filed motion for reconsideration is pending, the trial court retains jurisdiction
over the post-judgment motion, and the notice of appeal does not become effective until entry of
an order disposing of the motion. SeeFed. R.App. P. 4(a)(4)(B)(i) (“If a party files a notice of
appeal after the court announces or enters a judgment –but before it disposes of any motion
listed in Rule 4(a)(4)(A) –the notice becomes effective to appeal a judgment or order . . .when
the order disposing of the last such remaining motion is entered.”); 4(a)(4)(A)(iv) (motion to
alter or amend the judgment under Rule 59or for relief under Rule 60listed as qualifying post-
judgment motion); Hodge v. Hodge, 269 F.3d 155, 157 (2d Cir.2001) (per curiam) (a timely
filed motion listed in Rule 4(a)(4)(A)(i) postpones the effectiveness of the notice of appeal);
Basciano v. Lindsay, No. 07-CV-421, 2008 WL 1700442, at *1 (E.D.N.Y. Apr. 9, 2008)(“[T]his
court has jurisdiction to consider Petitioner’s motion for reconsideration, notwithstanding his
previous filing of a notice of appeal, and the notice of appeal will become ‘effective’when this

order disposing of the motion is entered.”). Accordingly, I retain jurisdiction over the motion for
reconsideration.
I. Entry of Default Judgment
Rule 55 of the Federal Rules of Civil Procedure establishes the two-step process for
plaintiff to obtain a default judgment. After the clerk enters the default of a defendant that “has
failed to plead or otherwise defend,” the court may, on plaintiff’s motion, enter a default
judgment if the defendant fails to appear or move to set aside the default under Rule 55(c). Fed.
R. Civ. P. 55(a), (b)(2). On a motion for a default judgment, the court “deems all the well-
pleaded allegations in the pleadings to be admitted.” Transatlantic Marine Claims Agency, Inc.
v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997) (citation omitted). However, the party

in default does not admit conclusions of law. See Rolls-Royce plc v. Rolls-Royce USA, Inc.,
688 F. Supp. 2d 150, 153 (E.D.N.Y. 2010).
“[J]ust because a party is in default, the plaintiff is not entitled to a default judgment as a
matter of right.” Mktg. Devs., Ltd. v. Genesis Imp. & Exp., Inc., No. 08-cv-3168, 2009 WL
4929419, at *2 (E.D.N.Y. Dec. 21, 2009). Rather, “it remains the plaintiff’s burden to
demonstrate that those uncontroverted allegations, without more, establish the defendant’s
liability on each asserted cause of action.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83
(E.D.N.Y. 2012) (collecting cases).
The defaulting defendants failed to appear or defend this lawsuit, and the Clerk has
entered their defaults. Default judgment is thus warranted if plaintiff can establish their liability.
II. Joinder
In the order denying default judgment, I concluded that plaintiff had not established a
common enterprise of all defendants. In its reconsideration motion, plaintiff explains that it

alleged separate RICO enterprises and that anyallegations regarding the similarityof the
schemes was not intended to allege the existence of a RICO enterprise comprising all defendants.
Instead, such allegations were intended to demonstrate that the alleged facts were sufficiently
related to justify joinder under Rule 20 of the Federal Rules of Civil Procedure. Now that I
understand plaintiff’s claims were intended to allegefourteen entirely separate enterprises, I am
compelled to concludethat these parties were not properly joined.
Rule 20 permits the joinder of defendants if “any right to relief is asserted against them
jointly, severally, orin the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurs; and []any question of law or fact common to all
defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2) (emphasis added). Thus,“[j]oinder

under Rule 20 requires, in addition to a common question of law or fact, that the plaintiffs assert
a right to relief arising from ‘the same transaction or occurrence.’” Scott v. Chipotle Mexican
Grill, Inc., 954 F.3d 502, 520 (2d Cir. 2020)(cleaned up). To determine whether allegations are
part of the same “transaction or occurrence,” courts “look to the logical relationship between the
claims and determine ‘whether the essential facts of the various claims are so logically connected
that considerations of judicial economy and fairness dictate that all the issues be resolved in one
lawsuit.’” Kalie v. Bank of Am. Corp., 297 F.R.D. 552, 557 (S.D.N.Y. 2013) (quoting United
States v. Aquavella, 615 F.2d 12, 22 (2d Cir. 1979)). Moreover, “the overlap in questions of law
or fact must be ‘substantial’ in order for joinder to be appropriate.” Golden Goose Deluxe Brand
v. Aierbushe, No. 19-CV-2518, 2019 WL 2162715, at *1 (S.D.N.Y. May 16, 2019).
Here, joinder of these defendants is improper. Plaintiff’s claims against the different
defendants are not transactionally related. As plaintiff underscores in the present motion,it did
not assert any claims against all defendants, did not claim that all defendants worked together,

and did not seek to hold all defendants jointly-and-severally liable. Instead, plaintiff’s claims
concern separate RICO enterprises that “operated independently of one another, during different
time periods and with different participants.” The enterprises are connected only in that they are
alleged to have (separately) filed fraudulent claims pursuant to similar schemes.
The fact that other judges have declined to sever such unwieldy complaints is not
compelling. Frankenstein’s Monster-like complaints, bonded solely by allegations that
defendants separately did the same bad thing, do not create efficiencies, as this case
demonstrates. Plaintiff’s causes of action concerned so many different bad actors that plaintiff
did not bother to explain specifically what each was alleged to have done until now, and instead

relied on hundreds of pages of exhibits to provide the specificity that should have been present in
the body of the complaint. Havingtried to understand how the generic claims in plaintiff’s
massivecomplaint and baremotion for default judgment relatedto each defaulted defendant, I
must revisit the issue now that plaintiff has finally taken the time to draw those connections.
Thus, such broad, unwieldy complaints are not a timesaver but in fact can result ina colossal
waste of judicial resources. Joinder was not proper here and plaintiff is cautioned not to file
another such complaint before me.
When the requirements of Rule 20 are not met, Rule 21 affords a district court “broad
discretion” in fashioning an appropriate remedy, including the possibility of dropping a party“at
any time.” Fed. R. Civ. P. 21. However, dropping any defendant would not serve judicial
economy at this late stage. Most of the defendants have settled and those who have not settled
have defaulted. The evidence in support of plaintiff’s motion for default judgment has been
submitted, and severance would require the refiling of five separate actions supported by the
same evidence. Although severance would comply more faithfully with the letter of Rule 20, it

would result in logistical hurdles and ultimately waste judicial resources.
Instead, to remedy this issue of improper joinder, I order plaintiff topay five separate
filing fees as there should have been six actions against these defendants for the six separate
enterprises.2 The only economies gained in this case“accrue[d] exclusively to the benefit of
plaintiff[], who [was] not required to pay separate filing fees for initiating litigation against each
individual defendant.” John Wiley & Sons, Inc. v. John Doe Nos. 1-22, No. 12 CIV. 4231, 2013
WL 1091315, at *3 (S.D.N.Y. Mar. 15, 2013). But “the desire to avoid paying statutorily
mandated filingfees affords no basis for joinder.” Digital Sins, Inc. v. John Does 1-245, No. 11
CIV. 8170, 2012 WL 1744838, at *3 (S.D.N.Y. May 15, 2012). Filing fees serve two purposes:

they are a revenue raising measure and they act as a modest threshold barrier against the filing of
frivolous or otherwise meritless lawsuits. SeeJohn Wiley & Sons, 2013 WL 1091315, at *3.
Allowing improper joinder results in significant lost revenue in filing fees and only encourages
plaintiffs to join or misjoin as many defendants as possible.
As described below, plaintiff’s motion for reconsiderationwill be granted and the motion
for default judgment granted in part and denied in part. However, this Order is subject to
plaintiff first paying$2,010to the Clerk of Court (five $402 filing fees for a civil case)within
fourteen days with proof of payment filed on the docket in this action.

2Although plaintiff’s complaint alleged fourteen distinct and separate legal entity RICO enterprises, I will not
require plaintiff to pay additional filing fees for the claims that have already been resolved in this action.
III. Liability
Turning to themerits, I am convinced by plaintiff’s new showing that there is adequate
proof to establishdefendants’liability on plaintiff’s claims under RICOand for common law
fraud, but plaintiff’s unjust enrichment claims are dismissed as duplicative.
A. RICO Claims
“To establish a RICO claim, a plaintiff must show: ‘(1) a violation of the RICO statute,

18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the
violation of Section 1962.’” DeFalco v. Bernas, 244 F.3d 286, 305 (2d Cir. 2001). Plaintiff
alleges a violation of Section 1962(c). “[T]o establish a violation of 18 U.S.C. § 1962(c), a
plaintiff must establish that a defendant, through the commission of two or more acts constituting
a pattern of racketeering activity, directly or indirectly participated in an enterprise, the activities
of which affected interstate or foreign commerce.” Id. at 306.
The RICO statute defines an “enterprise” as “includ[ing] any individual, partnership,
corporation, association, or other legal entity, and any union or group of individuals associated in
fact although not a legal entity.” 18 U.S.C. § 1961(4). “[E]vidence of an ongoing organization,
the associates of which function as a continuing unit, suffices to prove an enterprise.” DeFalco,

244 F.3d at 307. “[T]he alleged ‘enterprise’ through which a pattern of racketeering activity is
conducted must be distinct from those personsor entities who stand accused of conducting that
racketeering activity.” Allstate Ins. Co. v. Rozenberg, 590 F. Supp. 2d 384, 390 (E.D.N.Y.
2008). This is satisfied ifa “formal legal distinction” exists between the individual defendants
and the RICO enterprise. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 165 (2001).
Plaintiff has established that eachRetail Defendant constitutes an enterprise separate
from its individual defendant manager. Plaintiff “has adequately explained specifically how the
individual default defendants, independent of the enterprise corporation, perpetuated a fraud
through the various entity defaulting defendants.” Allstate Ins. Co. v. Abutova, No. 13-CV-
3494, 2017 WL 1185222, at *4 (E.D.N.Y. Feb. 15, 2017), report and recommendation adopted,
2017 WL 1184107 (Mar. 29, 2017). Plaintiff identified the RICO persons associated with each
RICO enterprise. The defendants and the enterprises are distinct because the alleged enterprises
are corporations and the individual defendants are natural persons. SeePalatkevich v. Choupak,

No. 12-CV-1682, 2014 WL 1509236, at *15 (S.D.N.Y. Jan. 24, 2014) (“[A] natural person
named as the defendant ‘person’ is inherently distinct from a corporate entity ‘enterprise’ for
which he acts as an agent; in such a case, the distinctness requirement is met.”). “Since these
allegations must be accepted as true in the context of a default judgment, courts haveheld that
this degree of specificity in pleading is sufficient to satisfy the distinctiveness requirement under
RICO, when alleged in the context of a no-fault billing insurance case.” Abutova, 2017 WL
1185222, at *4(citation omitted).
Plaintiff must also show that defendants participated in a pattern of racketeering activity.
18 U.S.C. § 1962(c). Racketeering activity,defined by 18 U.S.C. § 1961(1),refers to specific

criminal acts, including mail fraud. Federal mail fraud includes the “use of the mails in the
execution of ‘any scheme or artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises.’” Allstate Ins. Co. v. Howell, No. 09-
CV-4660, 2013 WL 5447152, at *5 (E.D.N.Y. Sept. 30, 2013) (quoting 18 U.S.C. § 1341). “A
complaint alleging mail []fraud must show (1) the existence of a scheme to defraud, (2)
defendant’s knowing or intentional participation in the scheme, and (3) the use of interstate mails
or transmission facilities in furtherance of the scheme.” S.Q.K.F.C., Inc. v. Bell Atl. TriCon
Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996).
Here, plaintiff alleges that defendants participated in dozens of predicate acts of
racketeering within a ten-year period. Although it was initially difficult to discern the specifics
of the alleged predicate acts in the complaint, plaintiff’s motion for reconsideration connects the
dots between the complaint and its annexed exhibits. Plaintiff identifies thespecific fraudulent
schemes applicable to each defendant and the facts demonstrating that the individual defendants

engaged in two or more acts of mail fraud by issuing fraudulent invoices that foreseeably would
involve the use of mail in the ordinary course of business. SeeAbramovich v. Oliva, No. 11-
CV-1755, 2012 WL 3597444, at *10 (E.D.N.Y. Aug. 20, 2012). These related acts extended
over a substantial period of timeand thus satisfy closed-ended continuity. SeeAbutova, 2017
WL 1185222, at *5. Plaintiff has further adequately pleadedthat the acts alleged affected
interstate commerce.
Accordingly, plaintiff has established each element of a civil RICO claim and is entitled
to default judgment against the defaulted individual defendants on these claims.
IV. State law claims
“To state a claim for fraud under New York law, a plaintiff must allege (1) a material

misrepresentation or omission of fact; (2) which the defendant knew to be false; (3) which the
defendant made with the intent to defraud; (4) upon which the plaintiff reasonably relied; and (5)
which caused injury to the plaintiff.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783
F.3d 395, 402 (2d Cir. 2015). Allegations of fraud must be pleadedwith specificity. See Fed. R.
Civ. P. 9(b).
Here, plaintiff’s complaint establishes its claims of common law fraud against the
individual defendants and Retail Defendants. Plaintiff claims that defendants, through false and
misleading statements, fraudulently billed plaintiff for medical supplies. Specifically, plaintiff
alleges that defendants knowingly made material misrepresentations in submitting insurance
claims to plaintiff, includingmisrepresenting the nature, quality, and cost of the medical
supplies, the amount they were entitled to be reimbursed, and whether the invoiced items were
actually supplied to patients. Such allegations satisfy “the material misrepresentation element of
a New York common law fraud claim and the heightened pleading standards of Rule 9(b).”
Allstate Ins. Co. v. Nazarov, No. 11-CV-6187,2015 WL 5774459, at *15 (E.D.N.Y. Sept. 30,

2015).
Plaintiff also seeks default judgment on its claims for unjust enrichment. “[O]n a motion
for a default judgment, an unjust enrichment claim is only examined as an alternative to the
conventional fraud claim, as it is available only in unusual situations when, though the defendant
has not committed a recognized tort, circumstances create an equitable obligation running from
the defendant to the plaintiff.” Abutova, 2017 WL 1185222, at *7 (quoting Gov’t Emps.Ins. Co.
v. Badia, No. 13-CV-1720, 2015 WL 1258218, at *16 (E.D.N.Y. Mar. 18, 2015))(cleaned up).
Because plaintiff’s motion for default judgment isgranted as to its common law fraud claims, the
motion as tothe unjust enrichment claims is denied as duplicative.

V. Declaratory judgment
In its final cause of action, plaintiff seeks a declaratory judgment that the Retail
Defendants are not entitled to payment for any pending, unpaid claims. A court may issue a
declaratory judgment only where the moving party has established the existence of an actual case
or controversy. 28 U.S.C. § 2201(a); E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154,
177 (2d Cir.2001). Courts have discretionover whether to issue a declaratory judgment and
must consider whether the judgment would clarify the issues involved and finalize the
controversy so as to offer relief from uncertainty. Dow Jones & Co., Inc. v. Harrods Ltd., 346
F.3d 357, 359-60 (2d Cir.2003). “Courts within this district have, on numerous occasions,
found these requirements met in actions by insurers seeking declaratory judgments regarding
obligations relating to allegedly fraudulent claims.” Gov’t Emps. Ins. Co. v. Jacques, No. 14-
CV-5299, 2017 WL 9487191, at *9 (E.D.N.Y. Feb. 13, 2017), report and recommendation
adopted, 2017 WL 1214460 (Mar. 31, 2017).
In recent decisions, some district courts have “denied similar claims for declaratory relief
against a defaulting defendant absent information about the status of pending state court

collection actions”needed to conduct anabstentionanalysis. Id.(collecting cases). The courts
have done so out of concern “that the existence of pending related lawsuits in state court
‘presents the palpable risk that the issuance of a declaratory judgment by [the district]court
would aid plaintiffs in “procedural fencing”or a “race to res judicata,”or would “encroach on
the domain”of any state court tribunals adjudicating any pending suits’” between plaintiff and
defendants. Id.(quoting Gov’t Emps. Ins. Co. v. Leica Supply, Inc., No. 11-CV-3781, 2013 WL
1334177, at *3 (E.D.N.Y. Mar. 30, 2013)).
Here, plaintiffsubmitted a chart demonstratingthat 181collections actions and
arbitrations are pending between itself and the defaulted Retail Defendants. These actions seek

payment for some of the over $1.1 million inunpaid claims. The record before me demonstrates
that these are predominately state court actions but does not specify whether those suits predate
the instant action, the procedural posture of the suits, or whether those suits involve questions of
state or federal law. Some courts in this district faced with similar records have denied the
motion for default judgment as to the declaratory judgment claim “without prejudice to renew
upon a more detail description of the status, nature, and procedural posture of the pending
actions.” Leica Supply, Inc., 2013 WL 1334177, at *4 (E.D.N.Y. Mar. 30, 2013); see alsoGov’t
Employees Ins. Co. v. Li-Elle Serv., Inc., No. 12-CV-2157, 2013 WL 829274, at *3 (E.D.N.Y.
Mar. 6, 2013). However, those same courts,once presented with a more detailed record, have
declined to abstain from granting the requested declaratory relief. SeeGov’t Emps. Ins. Co. v.
Leica Supply, Inc., No. 11-CV-3781, 2014 WL 1311544, at *7 (E.D.N.Y. Mar. 28, 2014)
(granting renewed motion for a declaratory judgment); Gov’t Employees Ins. Co. v. Li-Elle
Serv., Inc., No. 12-CV-2157, 2014 WL 1154244, at *3 (E.D.N.Y. Mar. 21, 2014)(same).
Iwill not requiresupplemental submission on this issue because on the present record I

can conclude that “exceptional” circumstances and the “clearest of justifications” do not exist to
justify the surrender of this Court’s jurisdictionto issue a declaratory judgment. Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 (1983). Abstention is “an extraordinary
and narrow exception to the duty of a District Court to adjudicate a controversy properly before
it” and “[a]bdication of the obligation to decide cases can be justified under this doctrine only in
the exceptional circumstances where the order to the parties to repair to the state court would
clearly servean important countervailing interest.” Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 813 (1976). As other courts in this district have found, the
ColoradoRiverfactors do not weigh in favor of abstention in actions by insurers seeking

declaratory judgments regarding obligations relating to allegedly fraudulent claims. See, e.g.,
Jacques, 2017 WL 9487191, at *11; Li-Elle Serv., Inc., 2014 WL 1154244, at *7; Leica Supply,
Inc., 2014 WL 1311544, at *7. Here, defendants’ actions in state court are not likely to dispose
of plaintiff’s claims before me, there is no evidence that plaintiff is merely attempting to
manipulate the outcome of state court cases, the state law claims before me are not particularly
complex, and it would be highly inefficient and duplicative for plaintiff to continue to litigate
defendants’ entitlement to payment in so many cases. Accordingly, this case does not present
the exceptional circumstances in which abstention is appropriate.
Turning to the merits of granting a declaratory judgment, plaintiff’s complaint alleges
with sufficient particularity how defendants’ pending, unpaid claims are part of a fraudulent
scheme to submit inflated claims. Thus, plaintiff has established the existence of an actual
controversy so as to warrant a declaratory judgment. I conclude that plaintiffis not obligated to
pay any of the defaulted Retail Defendants’ pending claims.

VI. Damages
Aparty in default is deemed to concede all well-pleadedallegations of liability but does
not admit damages. See Cement & Concrete Workers Dist. Council Welfare Fund v. Metro
Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). On a motion for default judgment, a
plaintiff must prove damages with reasonable certainty. SeeCredit Lyonnais Sec. (USA), Inc. v.
Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Under Rule 55 of the Federal Rules of Civil
Procedure, a court “may conduct hearings or make referrals” when it needs to “determine the
amount of damages [or] establish the truth of any allegation by evidence.” Fed. R. Civ. P.
55(b)(2). However, “[d]etailed affidavits and other documentary evidence can sufficein lieu of
an evidentiary hearing.” Chanel, Inc. v. Jean-Louis, No. 06-CV-5924, 2009 WL 4639674, at *4

(E.D.N.Y. Dec. 7, 2009).
A hearing on damages is not necessary because I can determine damages based upon
plaintiff’s detailed submissions, supported by sworn statements. Here, in support of its motion
for a default judgment, plaintiff submits an affidavit from Uriel McLeish, anAssistant Manager
for plaintiff,detailinghis review of plaintiff’s payment summaries and records relating to
defendants’no-fault insurance claims. In addition, plaintiff submits payment summaries and
tables detailing these payments and therelevant damages. These submissions are sufficient to
establish plaintiff’s entitlement to recovery. See Allstate Ins. Co. v. Tapper, No. 14-CV-5410,
2015 WL 6869702, at *5 (E.D.N.Y. Nov. 9, 2015).
A plaintiff bringing a RICO action may sue to recover “threefold the damages he
sustains.” 18 U.S.C. § 1964(c). Awards of treble damages are appropriate upon default
judgment. Gov’t Emps. Ins. Co. v. Infinity Health Prods., Ltd., No. 10-CV-5611, 2012 WL
1427796, at *9 (E.D.N.Y. Apr. 6, 2012), report and recommendation adopted, 2012 WL 1432213
(E.D.N.Y. Apr.25, 2012). Since the award of damages under RICO wholly compensates

plaintiff and the award is trebled, I decline to award plaintiff prejudgment interest on the RICO
claims. See, e.g., Abou-Khadra v. Mahshie, 4 F.3d 1071, 1084 (2d Cir.1993) (district court has
discretion as to whether to award prejudgment interest on RICO claims); Nu-Life Const. Corp. v.
Bd. of Educ. of City of New York, 789 F.Supp. 103, 105-106 (E.D.N.Y.1992)(in cases where
treble damages are adequate to compensate the plaintiff an award of prejudgment interest is
inappropriate). Plaintiff has demonstrated its entitlement to RICO damages in the following
amounts:
RICO DAMAGES
Defaulted Cause of RICO Enterprise Compensatory Rico Damages
Defendant Action Damages (Treble)
Russell Ionin 1st Active Care Medical $69,466.74 $208,400.22
Supply
Oleksiy 5th Bento Ortho $12,002.37 $36,007.11
Gerasymenko
Artur Denisov, as 21st Maxford $14,097.25 $42,291.75
Administrator of
the Estate of Yuriy
Denisov
Eduard Zarubin 29th Pravel $32,805.43 $98,416.29
Tatiana Rodionova 45th Sure Way NY $22,149.93 $66,449.79
Plaintiff is also entitled torecover compensatory damages for fraud from the Retailer
Defendants. SeeAllstate Ins. Co. v. Afanasyev, No. 12-CV-2423, 2016 WL 1156769, at *12
(E.D.N.Y. Feb. 11, 2016), report and recommendation adopted, 2016 WL 1189284 (Mar. 22,
2016) (plaintiffs entitled to compensatory damages for fraud from enterprise defendants). Each
Retail Defendant and its individual defendant manager arejointly and severally liable for those

fraud damages. In addition, plaintiff is entitled to pre-judgment interest on its state law fraud
claims. Gov’t Emps. Ins. Co. v. AMD Chiropractic, P.C., No. 12-CV-4295, 2013 WL 5131057,
at *9 (E.D.N.Y. Sept. 12, 2013) (“An award of pre-judgment interest on the state law fraud
claims is not precluded by an award of treble damages on the RICO Act claims arising from the
same conduct.”). Plaintiff has demonstrated its entitlement to fraud damages in the following
amounts:
FRAUD DAMAGES
RetailerDefendant Cause of Compensatory Prejudgment Fraud Damages
Action Damages Interest3
Active Care Medical 2nd $69,466.74 $19,470.87 $88,937.61
Supply Corp.
Bento Ortho, Inc. 6th $12,002.37 $4,985.14 $16,987.51
Maiga Products Corp. 18th $18,453.84 $4,488.26 $22,942.10
Maxford Inc. 22nd $14,097.25 $7,299.78 $21,397.03
Pravel Inc. 30th $32,805.43 $16,984.85 $49,790.28
Sure Way NY Inc. 46th $22,149.93 $11,282.22 $33,432.15

3Prejudgment interest calculations are taken from Exhibit 23 to plaintiff’s motion for default judgment. Plaintiff
requests that prejudgment interest be computed from the first day of the year following the payment of each
fraudulent claim to defendants, an appropriate methodology. SeeAMD Chiropractic, P.C., 2013 WL 5131057, at
*9. I have reviewed the calculations and conclude that they are correctly calculated.
However, because the RICO damages wholly compensate plaintiff and that award has
been trebled, separate awards of damages on the common law fraud claims would amount to a
double recovery for plaintiff. See Gov’t Emps. Ins. Co. v. Esses, No. 12-CV-4424, 2013 WL
5972481, at *10, n.3 (E.D.N.Y. Nov. 5, 2013). Accordingly, the total damages award against
each individual defendant will be the trebled RICO damages, plus prejudgment interest on the
fraud damages, for which the associated Retail Defendant is jointly and severally liable for the
total amount of fraud damages. Thus, the total damages awards are as follow:
° Russell Jonin is liable for total damages of $227,871.09. Active Care Medical
Supply Corp. is jointly and severally liable for $88,937.61 of that amount.
° Oleksiy Gerasymenko is liable for total damages of $40,992.25. Bento Ortho,
Inc. is jointly and severally liable for $16,987.51 of that amount.
° Maiga Products Corp. is liable for total damages of $22,942.10.
e Artur Denisov, as Administrator of the Estate of Yurry Denisov, is liable for total
damages of $49,591.53. Maxford Inc. is jointly and severally liable for
$21,397.03 of that amount.
° Eduard Zarubin is liable for total damages of $115,401.14. Pravel Inc. is jointly
and severally liable for $49,790.28 of that amount.
° Tatiana Rodionova is liable for total damages of $77,732.01. Sure Way NY Inc.
is jointly and severally liable for $33,432.15 of that amount.
CONCLUSION
Plaintiff's motion for reconsideration 1s granted. Upon reconsideration, plaintiffs motion
for default judgment is granted in part and denied in part: (1) plaintiff is entitled to default
judgment against the defaulted defendants on its RICO and common law fraud claims, (11)
plaintiffs unjust enrichment claims are denied as duplicative, (111) plaintiff is entitled to a
declaratory judgment that it is not obligated to pay the unpaid insurance claims submitted by the
defaulted defendants, and (iv) plaintiff is entitled to damages in the amounts described above.
Entry of an Amended Judgment is deferred pending plaintiffs paying $2,010 to the Clerk of

21

Court, representing five $402 filing fees, within fourteen days with proof of payment filed on the
docket in this action.

SO ORDERED.
Digitally signed by Brian
M. Cogan
______________________________________
U.S.D.J.
Dated: Brooklyn, New York
January 21, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305571. Public record. Not legal advice.