Opinion
708237/2014
02-13-2018
Qazzzafi WHYEN, Plaintiffs, v. Solomon Clayton SUMMERS, Kingler Victor Valedes, and Golden Touch Transportation of NY, Inc., Defendants. And Two Other Actions.
Cherny & Podolsky, PLLC, by Steven V. Podolsky, Esq., 8778 Bay Parkway, Brooklyn, New York 11214, for Plaintiff Shakir. Law Office of Marc H. Wasserman, P.C., P.O. Box 718, Mt. Sinai, New York 11766, for Plaintiff Whyen. Molod Spitz & DeSantis, P.C., by Alice Spitz and Bari Klein, Esqs., 1430 Broadway, New York, New York 10018, for Defendants Golden Touch and Klinger. Subin Associates, LLP, by Charles J. Hurowitz, Esq., 150 Broadway, New York, New York 10038, for Plaintiff Summers in Action No. 3. Adams, Hanson, Rego & Kaplan, by Jaret Sanpietro, Esq., 3 Dakota Drive, Lake Success, New York 11214, for Defendant Summers in Actions 1 & 2.
Cherny & Podolsky, PLLC, by Steven V. Podolsky, Esq., 8778 Bay Parkway, Brooklyn, New York 11214, for Plaintiff Shakir.
Law Office of Marc H. Wasserman, P.C., P.O. Box 718, Mt. Sinai, New York 11766, for Plaintiff Whyen.
Molod Spitz & DeSantis, P.C., by Alice Spitz and Bari Klein, Esqs., 1430 Broadway, New York, New York 10018, for Defendants Golden Touch and Klinger.
Subin Associates, LLP, by Charles J. Hurowitz, Esq., 150 Broadway, New York, New York 10038, for Plaintiff Summers in Action No. 3.
Adams, Hanson, Rego & Kaplan, by Jaret Sanpietro, Esq., 3 Dakota Drive, Lake Success, New York 11214, for Defendant Summers in Actions 1 & 2.
Salvatore J. Modica, J.
In a case where this Court has an extensive knowledge of the facts and has already written several decisions, the parties, filing voluminous papers, have made various motions to renew, for partial summary judgment on liability, and for summary judgment dismissing the action based on alleged collusion in insurance fraud. All the motions, and the cross motion, under motion sequence numbers 7 and 8 are denied.
As an initial matter, the Court, sua sponte, changes the name of the defendant "Kingler Victor Valedes"—as erroneously stated in the summons and complaint to Victor Valdes Klinger ("Klinger") to conform to the spelling provided by the defendant in a prior affidavit, found at ECF document 44. The Court directs the Clerk to change the spelling of defendant Klinger's name from "Kingler Victor Valedes" to his true and correct name of "Victor Valdes Klinger" on all the files and records of this action.
Plaintiffs Qazaffi Whyen ("Whyen") and Khaim Shakir ("Shakir"), on the foregoing papers, contend that while passengers in a car driven by defendant Solomon Clayton Summers ("Summers"), on May 16, 2014, at 7:00 P.M., they were injured when rear-ended by a bus owned by defendant Golden Touch Transportation of NY, Inc. ("Golden Touch"), and operated by defendant Klinger.
Concerning the motion to renew, it is based on an examination before trial that was conducted after this Court's prior decision. The Court previously denied the motion by Summers for summary judgment as being supported only by his own affidavit. This Court observed that Summers's bare statements did not describe his conduct prior to the collision and, as a result, fail to demonstrate that his actions did not contribute to the accident. Now, Summers makes a motion to renew based on further alleged proof.
This Court certainly respects that, under well-settled law, a motion to renew may be made and should be granted where recently obtained discovery responses or answers to questioning made at a deposition require the Court to modify, alter, or vacate its prior opinion. The Appellate Division, Second Judicial Department, in Hudson City Savings Bank v. 59 Sands Point, LLC , 153 AD3d 613, 614 (2017), recently stated: "A motion for leave to renew ‘shall be based upon new facts not offered on the prior motion that would change the prior determination’ and ‘shall contain reasonable justification for the failure to present such facts on the prior motion.’ " Id., citing CPLR 2221[e][2] & [3 ] and other cases.
Nothing furnished to this Court in the seven boxes of motion papers on the present motions and cross motion, however, require a "change [of] the prior determination." In the present action, the Court notes that the accident occurred allegedly on a wet surface of the Van Wyck Expressway Southbound during the evening hours. Moreover, contrary to the posturing of the parties that the case should be treated as a garden variety hit in the rear case where the Appellate Division has made clear that, absent a reasonable explanation, partial summary judgment should flow on the issue of liability, this was not the case here. The Court, reviewing the deposition transcripts, believes that the accident occurred during moving traffic, and not when vehicles were at a stop or stationary. Everything this Court has read, in poring over the voluminous papers and exhibits, confirms that there are numerous factual issues to be resolved at trial. As a result, the motion to renew is denied.
In addition, because of highly disputed issues of fact, the motion and cross motion seeking summary judgment are also denied.
The present motions would appear to be mundane, but for a troubling fact. Defendants Golden Touch and Klinger contend that defendant Summers and plaintiffs Whyen and Shakir were in collusion in insurance fraud. Golden Touch and Klinger claim that Summers, Whyen, and Shakir purposefully, intentionally, deliberately, and calculatedly set out that evening together to look to stage an accident, hoping in particular to find a bus and some "deep pocket" defendant or insurer. To support their claim that Summers, Whyen, and Shakir purposefully set out to stage and orchestrate an accident, looking for a windfall gain from a deep pocket defendant in a spurious personal injury action, they submit an affidavit by plaintiff Whyen's former girlfriend Nagihan Olgun.
Opposing the motion for summary judgment by co-defendant Summers, Alice Spitz, Esq., in her affirmation dated November 1, 2017, for defendants Golden Touch and Klinger, writes:
The evidence reveals that the "accident," which is the subject of the within lawsuit(s) was nothing more than an orchestrated, intentional, staged occurrence to try to hold Klinger and Golden Touch accountable for injuries that resulted solely as a consequence of their own intentional conduct; and, therefore, cannot satisfy the elements to sustain any cause of action in negligence.
The implementation and execution of the conspiracy and the complicity perpetrated among Summers, Shakir and Whyen to commit fraud is embodied in the detailed and sworn affidavit of Whyen's former girlfriend and confidant, Nagihan Olgun. Ms. Olgun affirmed that Whyen, as well as his "co-conspirators," Summers and Shakir "chose a rainy day to drive along the Van Wyck Expressway and that they were looking for any kind of big company vehicle or bus to have and [sic] accident with".
Ms. Spitz's affirmation, dated Nov. 1, 2017, pp. 3–4.
Clearly, criminal conspiracy and insurance fraud constitute a serious violation of the law. See , Penal Law § 105, et seq., Penal Law § 176, et seq. Indeed, it is estimated that insurance fraud results in the theft of billions of dollars a year, with the cost passed on to law-abiding citizens. One web site, www.smartmotorist.com, states:
According to an Insurance Research Council (IRC) study, approximately 90 percent of the costs of insurance fraud are the result of claims padding. Claimants add damage, injuries, and fictitious passengers to their insurance claims. The other 10 percent are the result of organized accident staging rings. Because of the sheer number of offenders, and the light sentences received by the few that are convicted, pursuing these crimes has not a priority for law-enforcement. Most insurance companies consider it a necessary part of doing business, and just pass the costs on to the consumer.
The Appellate Division, Second Judicial Department, in Oriental v. U–Haul Co. of Arizona , 130 AD3d 702 (2015), has held that a passenger could not recover damages from owner and operator in light of uncontroverted evidence that passenger engaged in the unlawful and highly dangerous activity of staging a motor vehicle accident for pecuniary gain.
The act of intentionally staging a motor vehicle accident is, moreover, an inherently dangerous endeavor that places the safety of the general public at risk. See, Manning by Manning v. Brown , 91 NY2d 116 (1997) (as a matter of public policy, where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff's conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation. Accordingly, plaintiff's knowing participation in the unauthorized use of a motor vehicle, a crime commonly referred to as joyriding, precludes her recovery for injuries sustained when the vehicle struck a pole); Barker v. Kallash , 63 NY2d 19 (1984) (a 15–year-old plaintiff, injured while constructing a "pipe bomb," cannot maintain a tort action against the 9–year-old defendant who allegedly sold the firecrackers from which the plaintiff's companions extracted the gunpowder used to construct the bomb).
"The principle that a wrongdoer may not profit from his or her wrongdoing is deeply rooted in this State's common law." In re Edwards , 121 AD3d 336, 339 (2nd Dept. 2014). As Judge Earl for the majority of the New York Court of Appeals in Riggs v. Palmer , 115 NY 506, 511–512 (1889), stated eloquently:
No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.
The fact that defendants Golden Touch and Klinger may not have included the facts of insurance fraud, alleged criminal purpose, or claimed illegality as defenses in their answer would not bar this Court from preventing anyone trying to cash in on insurance fraud. See, Penal Law § 176.05, defining and covering insurance fraud.
In the present case, the statements contained in Ms. Olgun's affidavit are untested by cross-examination. They deserve to be fully explored at the trial already scheduled by the Court, including the circumstances of Ms. Olgun's relationship breakup with plaintiff Whyen. "Cross-examination is the greatest legal engine ever invented for the discovery of truth." John Henry Wigmore, Wigmore on Evidence, quoted in California v. Green , 399 U.S. 149, 158 & n.11 (1970). This Court, on these motions, declines to consider Ms. Olgun's affidavit as "uncontroverted evidence" within the meaning of Oriental v. U–Haul Co. of Arizona , 130 AD3d 702 (2015), since Ms. Olgun has declined to testify as to the truthfulness of her statements at a deposition. See copies of Ms. Olgun's affidavits found at ECF document numbers 172, 194, 217, and 286.
As demonstrated by the quoted excerpt from smartmotorist.com, even insurers are too tired to report insurance fraud to jaded prosecutors. And, in the experience of the undersigned, even when judges are handed the details of criminal behavior as they arise in civil cases, whether involving forgeries or outright theft from honest and hard-working consumers, courts, whether out of tired indifference or outright cynicism, do not either bother to inform prosecutors or make a recommendation of criminal investigation. A judicial shrugging of the shoulders in the face of criminality—if proven—is just unacceptable. When courts start looking the other way when given details of insurance fraud or scams on innocent consumers then they have effectively enabled and facilitated the wrongdoing and illegality to blossom, thrive, and prosper. This is unacceptable. It is cold indifference by those with a responsibility to act in the face of overt illegality that allows such criminality to flourish. If wrongdoing can be established, the failure of overburdened insurers, jaded prosecutors, and cynical judges to take action is wrong.
Certainly, judges, sworn to uphold the law, cannot invoke ostrich-like blindness or escapism. If the trial judge assigned to this case decides, in the court's discretion, to include a special interrogatory on the issue of insurance fraud, and if the fact-finder or jury concludes that insurance fraud was involved by certain specified litigants, a court would be warranted to alerting the proper prosecuting authorities at the conclusion of the trial.
For present purposes, the motions and the cross motion by defendants Klinger and Golden Touch are all denied. The parties shall appear at the Trial Scheduling Part, at the courthouse located at 88–11 Sutphin Boulevard, Jamaica, New York 11435, on March 21, 2018, at 9:30 A.M., as already scheduled, for the trial of the action.
The foregoing constitutes the decision, order, and opinion of the Court.