NYRX Pharm. Inc. v Mid-Century Ins. Co. (2023 NY Slip Op51094(U))

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION

[*2]INTRODUCTION

Defendant moves This Honorable Court by Notice of Motion for Summary Judgment pursuant to CPLR 3212 to Dismiss Action in its entirety, and for such other and further relief deemed just and proper. For the reasons set forth below, it is hereby DENIED.

Plaintiff NYRX Pharmacy Inc. commenced this No-Fault action January 17, 2020, for the amount of $3,880.30 in payment of medical services rendered to assignor, Danferlin Ortiz, for injuries allegedly sustained as result of motor vehicle accident (hereinafter referred to as MVA) as against insured Joshua Guzman Lorenzo’s purported insurer, Farmers Insurance Company, policy number XXXXX. Issue was joined on or about March 3, 2020. The alleged subject MVA occurred on or about November 29, 2018, 2:27 p.m. as insured Joshua Guzman Lorenzo in his vehicle was stopped at a traffic light at the intersection of East 150 Street and Prospect Avenue in Bronx, New York, when his vehicle was rear-ended by Edwin S Baez driving a U-Haul truck, insured by Repwest Insurance Company. The assignor herein, Danferlin Ortiz was a passenger along with another passenger, Gaderlin Ortiz, in Joshua Guzman Lorenzo’s vehicle. It has been alleged that all parties herein this MVA are related by consanguinity or affinity. As a result of alleged injuries thereto, all three occupants of the insured’s vehicle, including assignor Danferlin Ortiz were rendered medical services, of which Farmers Insurance Company designated its claim number as 5006678777. Plaintiff sued upon amount of $3,880.30, consists of two bills, date of service December 27, 2018, for $2,951.00 which Defendant conceded as received on or about February 25, 2019, and date of service January 12, 2019 for $929.30 which Defendant also conceded as received on or about February 28, 2019. Defendant generated verification requests by a delay letter dated March 11, 2019, pending the Examination Under Oath (hereinafter referred to as EUO) of the claimants.

EUO was scheduled by Buratti, Rothenberg & Burns, staff counsel to Mid-Century Insurance Company for February 14, 2019 at 12:00 p.m. with notice mailed January 29, 2019 to be held at US Legal Court Reporting Concourse Plaza West Shopping Center, 206 East 161st Street, Bronx, NY 10451. Second EUO was scheduled for March 12, 2019 at 12:00 p.m. with notice mailed February 19, 2019 at same location. Konstantinos Tsirkas, counsel for Defendant Mid-Century Insurance Company states in an affirmation “On 2/14/19 AND 3/12/19, I was present at US Legal Court Reporting, Concourse Plaza West Shopping Center, 206 East 161st Street Bronx, NY 10451, in order to conduct an Examination Under Oath of Danferlin Ortiz, in regard to claim no: 5006678777 and date of loss November 29, 2018. The EUO was scheduled for 12:00 p.m. The witness failed to appear for the scheduled EUO. After waiting one hour beyond the time of the scheduled EUO, counsel placed a statement on the record in the presence of a notary public of the State of New York” (Tsirkas aff, exhibit J, ¶3-4).

It is unclear exactly what was the chain of custody for the alleged two affidavits/criminal confessions that were allegedly provided to Defendant by Repwest Insurance Company. There is merely a statement by affiant Defendant claims representative, Richard Tirino:

“The Defendant was alerted by Repwest Insurance Company, the insurance carrier of the UHaul truck, that the two drivers of the subject vehicles, JOSHUA GUZMAN LORENZO and EDWIN BAEZ, admitted to staging the accident after being promised $500.00 for their participation. It was also revealed that the two drivers JOSHUA GUZMAN LORENZO and EDWIN BAEZ are related. The signed and notarized affidavits of claimants/drivers JOSHUA GUZMAN LORENZO and EDWIN BAEZ [*3]admitting to staging the accident are annexed to the within motion” (Tsirkas aff, exhibit D, ¶ 17).

Affiant Torino states that both affidavits/criminal confessions by the allegedly related by consanguinity or affinity Guzman-Lorenzo and Baez were notarized. On the contrary, the insured Guzman-Lorenzo’s, dated January 17, 2019 was not notarized. Of note, his affidavit/criminal confession was entered into seven days after his counsel declined further representation (Tsirkas aff, exhibit F). Most notably, the purported affidavit/criminal confession attributed to Guzman-Lorenzo is a fillable form captioned Repwest Insurance and at the notarial region of the form the word “witness” was circled and not “notary public” (Tsirkas aff, exhibit G). Thereat affixed is a signature with no line for printing of the name of the putative signatory to be able to identify such alleged witness and her interest or disinterest in the matters contained therein this fillable form alleged affidavit/criminal confession, whereas there is a line for printing the affiant’s name. Further, the alleged affiant’s name was misspelled as “Josha Emanuel Lorenzo-Guzman” twice, whereas his legal name as indicated at the bottom right hand of the form in his alleged New York State Driver License is “Joshua Emanuel Guzman-Lorenzo” (Tsirkas aff, exhibit G). Within this fillable form alleged as affidavit/criminal confession is visibly contained at least two different hand writings in designated spaces with typed in text:

“The Collision was intentionally caused and was in no way accidental in nature. I have personal knowledge that the Collision was intentionally caused because I participated in it as a (driver/passenger) of the (UH/adverse) vehicle with the expectation that I would profit monetarily as a result. I Joshua E. Guzman Lorenzo was promised $500.00. I hereby acknowledge that on Jan. 17, 2019 I gave a verbal confession to Investigator Bernard E Moran, in which I admitted to participating in this intentionally staged Collision, and provided the details concerning same to the investigator. Investigator Bernard E Moran advised me prior to the interview that he would be recording my verbal statement, and I gave him my consent to do so. I submit this affidavit voluntarily. I was not threatened, intimated, or otherwise forced to or coerced into giving the verbal statement or executing this affidavit” (id. at 1, ¶ 3-6).

Unlike Guzman-Lorenzo’s affidavit/criminal confession, Edwin Baez’s dated January 12, 2019 was notarized and all spaces in the fillable form were typed in text and not handwritten in. Baez is the driver/lessee of the rear-ending colliding U-Haul, insured by Repwest Insurance bearing claim number 01308341-2018. The language contained within the affidavit/criminal confession is similar with same substance and general fact import:

“The Collision was intentionally caused and was in no way accidental in nature. I was not injured and no one from the adverse Vehicle said they were injured. I was directed by a person not known to me to crash into the 2009 Honda Sedan owned by Mr. [sic] Guzman, Lorenzo, Joshua Emanuel a family member of my family. I have personal knowledge that the Collision was intentionally caused because I participated in it as a (driver Lessee) of the (U-Haul) vehicle Equipment with the expectation that I would profit, or a party involved would profit monetarily as a result. I was not informed about the details of any money amounts. I hereby acknowledge that on January 9th, 2019, I gave a verbal confession to Investigator Bernard E Moran, in which I admitted to participating in this intentionally staged Collision, and provided the details concerning same to the Investigator. Investigator Bernard E Moran advised me prior to the interview that he would be recording my verbal statement, and I gave him my consent to do so. This [*4]recorded statement was taken over my cell number to my mother’s cell phone while investigator Bernard E Moran recorded the interview onto his cell phone in the presence of my Mother inside my family apartment at I submit this affidavit voluntarily, I was not threatened, intimidated, or otherwise forced to or coerced into giving the verbal statement of executing this affidavit” (id. at 2, ¶ 3-6).

Defendant filed the instant Motion for Summary Judgment and to Amend the Caption on May 4, 2021, seeking an order pursuant to CPLR § 3025 (b) for leave to amend the caption to change Defendant’s name from Farmers Insurance Company to their underwriting company, Mid-Century Insurance Company and an order pursuant to CPLR §3212 granting summary judgment in favor of Defendant on grounds that Plaintiff’s assignor allegedly failed to appear for Examinations Under Oath and that material and false representations were made in the presentation of the claim. The motion was adjourned to July 19, 2021, November 16, 2022, March 6, 2023, and oral arguments heard on September 19, 2023, with decision reserved.

It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact (Sillman v Twentieth Centurv-Fox Film Corp., 3 NY2d 395 [1957]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; see also Giuffrida v Citibank, 100 NY2d 72 [2003]). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers (Di Menna & Sons v City of New York, 301 NY 118 [1950]). Where the court finds an existence of such an issue or where the issue may be so deemed “arguable” requires denial of summary judgment (Braun v Carey, 280 App Div 1019 [3d Dept 1952]; Barrett v Jacobs, 255 NY 520, 522 [1931]). “Issue-finding, rather than issue-determination, is the key to the procedure” for the court (Esteve v Avad, 271 App Div 725, 727 [1st Dept 1947]; Gravenhorst v Zimmerman, 236 NY 22, 38-39 [1923]). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404-05 [1957]). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied (Moskowitz v Garlock, 23 AD2d 943 [3d Dept 1965]). When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party and inferences that may be drawn therefrom must be accepted as true (Dykeman v Heht, 52 AD3d 767, 769, 861 NYS 2d 732 [2d Dept 2008]; see Pearson v Dix McBride, 63 AD3d 895, 883 [2nd Dept 2009]; Robinson v Strong Mem. Hosp., 98 AD2d 976 [4th Dept 1983]). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court’s directing judgement in movant’s favor as a matter of law notwithstanding sufficiency of opposition or lack thereof (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once movant’s burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible [*5]evidence, the existence of a material factual issue in dispute requiring a factfinder’s determination at trial (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v Citv of New York, 49 NY2d 557 [1980]). Opposition must “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse” for failure to so do (id. at 560; Pride Acquisitions LLC v Benson, 2012 NY Misc LEXIS 5839, 2012 NY Slip Op 33065 [U] [Sup Ct 2012]). Conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgement as a matter of law cannot be relied upon. Nor may opposition papers to rebut rely upon general overbroad allegations or mere immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial (Fileccia v Massapequa Gen. Hosp., 63 NY2d 639 [1984]; Bustamonte v Koval, 98 AD2d 739 [2d Dept 1983]; Pan v Coburn, 95 AD2d 670 [1st Dept 1983]; Himber v Pfizer Labs., 82 AD2d 776 [1st Dept 1981]; Baldwin v Gretz, 65 AD2d 876 [3d Dept 1978]; Century Ctr. Ltd. v Davis, 100 AD2d 564 [2d Dept 1984]). Thus, where non-movant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation, or credibility then this issue of fact must be determined by the factfinder either by judge or jury precluding summary judgement (Moskowitz v Garlock, 23 AD2d 943, 259 NYS 2d 1003 [3d Dept 1965]).

STAGED INTENTIONAL ACCIDENT

It is well established precedential case law, a staged or intentional vehicular collision is not a covered accident under New York State Insurance Law, thus a bar to vehicular insurance coverage (Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786 [2d Dept 2022]). In a most extreme example of an intentional albeit not per se staged vehicular collision which resulted in the operator being convicted of depraved indifference murder, the Appellate Division Second Department held:

“Under the automobile insurance policy issued to Eugene Wright, Allstate agreed to provide coverage for ‘accidents arising out of the ownership, maintenance or use . . . of an insured auto’. Hazel Wright’s actions of turning her vehicle around, accelerating, and striking the decedent with enough force to crush his skull, cannot be deemed ‘an accident’ within the meaning of the policy. Thus, the incident which led to the death of Robert Bostick did not fall within the scope of coverage provided by Eugene Wright’s automobile insurance policy” (Allstate Ins. Co. v Bostic, 228 AD2d 628, 628-629 [2d Dept 1996], citing People v Wright, 198 AD2d 249 [2d Dept 1993] and John Hancock Prop. & Cas. Ins. Co. v Warmuth, 205 AD2d 587 [2d Dept 1994]).

An accident is defined as an unforeseen unplanned happenstance lacking in intentionality.^[FN1] Staged by its very definition is deliberately arranged for a desired outcome thus steeped in intentionality.^[FN2] Notwithstanding that the homicide victim was an innocent third-party, the court held that the operator committed an intentional vehicular collision which was not an “accident” [*6]and thus not an insurable event and denied coverage to the third-party innocent in a wrongful death action. Indeed, it has been consistently upheld, innocent third parties injured by staged intentional vehicular collisions shall not be afforded insurance coverage (Adirondack Ins. Exch. v Rodriguez at 905-906, citing Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2d Dept 2014]).^[FN3] The Insurer bears the initial burden to establish that the vehicular collision at issue is a staged intentional vehicular collision as a matter of law by the lower standard of proof, preponderance of evidence, as opposed to the higher standard of proof, clear and convincing evidence (Repwest Ins. Co. v Sasan Family Chiropractic, P.C., 2016 NY Slip Op 31413 [U] *9-11 [Sup Ct, NY County 2016], citing V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term 2009]). It is a matter of the admissible evidence proffered by the Insurer to so meet that standard of proof. Alone, alleged vehicular staged accident conspirators’^[FN4] affidavits are insufficient to meet this burden:

“Although by itself, Baptiste’s affidavit would not be sufficient, when his affidavit is considered together with the transcript of his recorded conversation detailing his role in underlying scheme as the driver of the U-Haul vehicle, as well as the affidavit of investigator Moran who personally interviewed Baptiste, recorded the conversation and certifies as to the truth of the transcription, plaintiff has made a sufficient prima facie showing that the collision was intentional and staged, and as such, is not a covered accident under plaintiff’s policy” (Repwest Ins. Co. v Sasan Family Chiropractic, P.C. at 7, citing Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663 [2d Dept 2015], Emanvilova v Pallotta, 49 AD3d 413 [1st Dept 2008]; Matter of Travelers Indem. Co. v Cruz, 40 AD3d 362 [1st Dept 2007]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192 [1st Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

The court found that it was not the conspirator’s affidavit in and of itself that was sufficiently persuasive to meet the prima facie burden. Rather, the insurer investigator’s affidavit in which he swore under penalties of perjury that the alleged conspirator “told him that he intentionally struck the cab” was deemed “an admission and as such, properly considered as competent evidence in support of plaintiff’s prima facie case for the purpose of showing that the collision was staged” (id. at 5-6, Tower Ins. Co. of NY v Hossain, 134 AD3d 644 [1st Dept 2015]; Tower Ins. Co. of NY v Brown, 130 AD3d 545 [1st Dept 2015]; Castlepoint Ins. Co. v Jaipersaud, 127 AD3d 401 [1st Dept 2015]). The court noted that the investigator had personal knowledge as he directly spoke with the alleged conspirator, recorded the conversation, reduced the conversation to a written transcript which the investigator certified as to its accuracy and veracity of the conspirator’s verbal admission against his own interest of criminal conduct. Therefore, insurer’s admissible proffered proof by a preponderance of the evidence established that the vehicular collision was intentional and staged and thus insurer met its initial prima facie burden for summary judgment. The burden then shifted to provider seeking insurance coverage to rebut insurer’s prima facie case, which the court found it failed to do (id.). Rejected by court were the following: provider attorney’s affirmation without corroborating affidavit by affiant with personal knowledge; provider’s conclusory attack on the admissibility and veracity of the affidavits and the police accident report; and provider’s argument for time for discovery where “it has failed to show that facts essential to oppose the motion are in plaintiff’s exclusive knowledge, or that discovery may lead to facts relevant to a viable defense” in mere hope that further discovery may lead to any evidence which would support provider’s rebuttal of insurer’s prima facie case (id. at 11, see Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing Santiago v City of NY, 191 AD3d 715 [2d Dept 2021]; Blake v City of NY, 148 AD3d 1101 [2d Dept 2017]).

In this instant matter, insurer fails to meet its burden to establish prima facie entitlement for summary judgment as a matter of law. Here, the insurer relies wholly on the affidavits of drivers related by consanguinity or affinity as alleged co-conspirators to attempt to prove material misrepresentation of a staged intentional accident, which has been held as insufficient. Rather, these are not merely affidavits, but alleged co-conspirators criminal confessions.^[FN5] Here, insurer does not provide affidavit of an affiant with personal knowledge as to the veracity, [*7]accuracy, reliability nor the making of these notarized criminal confessions. Insurer woefully fails in its attempt to do so by merely adding to its claim representative affidavit that Repwest Insurance alerted Defendant Insurer as to the alleged fraud and impliedly of its own volition provided both confessions to Defendant. However, where Repwest Insurance has used such fillable affidavits/criminal confessions to establish summary judgment in staged intentional accidents, corroboration by an investigator with personal knowledge engaged in recorded, formally transcribed and certified conversations with alleged conspirators eliciting admissions against own interest. Herein, these fillable affidavits/criminal confessions are rejected out of hand. The mere presence of these fillable affidavits/criminal confessions are unreliable at best. Notably, both alleged conspirators are Latinos. Are they fluent in English? Did they understand what they were signing? The alleged fillable affidavits/criminal confessions are typed and handwritten in. Who actually typed them? Who handwrote the fillable areas? Who provided the specific typed or handwritten text? Did the alleged conspirators understand that they were signing admissions to a crime that may be used against them in a criminal court of law with exposure to prison time?^[FN6] Were they given notification of their right against self-incrimination?^[FN7] Most notably, the alleged conspirators executed fillable affidavit/criminal confessions were notarized two (2) days, on January 12, 2019, and seven (7) days, on January 17, 2019, after their attorney terminated representation. Thereby not represented by counsel.

ORDERED Amendment of caption is GRANTED. The Police accident report states insurance code as 762, which is designated as Mid-Century Insurance Company.^[FN8]

There is a triable issue of fact as to alleged EUO no shows, where there is inconsistent names of proper insurer, Farmers Insurance Company or Mid-Century Insurance Company.

For the foregoing reasons, This Court finds as a matter of law that Defendant Insurer failed to satisfy its prima facie burden by a preponderance of the evidence for entitlement to summary judgment. Consequently, Defendant Insurer motion to dismiss pursuant to CPLR 3212 is hereby DENIED.

This constitutes the opinion, decision, and order of This Honorable Court.

Footnotes

Footnote 1:Merriam-Webster, https://www.merriam-webster.com/dictionary/accident (accessed Oct. 5, 2023); Vocabulary.com, https://www.vocabulary.com/di ctionary/accident (accessed Oct. 5, 2023).

Footnote 2:Vocabulary.com, https://www.vocabulary.com/dict ionary/staged (accessed Oct. 5, 2023).

Footnote 3:“[I]f GEICO can prove that the collision was staged by Robinson, its insured, it would not be obligated to provide coverage under the policy regardless of whether Pontoon was an innocent third party (Nationwide Gen. Ins. Co. v Pontoon at 1041, citing Matter of Travelers Indem. Co. v Richards-Campbell, 73 AD3d 1076 [2d Dept 2010]; Govt. Emples. Ins. Co. v Shaulskaya, 302 AD2d 522 [2d Dept 2003]; Morris v Allstate Ins. Co., 261 AD2d 457 [2d Dept 1999]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

Footnote 4:Although these matters are civil as to insurance coverage in perpetration of staged vehicular collisions, it is a New York criminal Class D and E felony pursuant to Alice’s Law effective 11/1/2019: Sections NY CLS Penal § 176.75 and NY CLS Penal § 176.80:

• § 176.75 Staging a motor vehicle accident in the second degree.

• A person is guilty of staging a motor vehicle accident in the second degree when, with intent to commit and in furtherance of a fraudulent insurance act, he or she operates a motor vehicle and intentionally causes a collision involving a motor vehicle.

• Staging a motor vehicle accident in the second degree is a class E felony.