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Rizz Mgt. Inc. v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51191(U) (Dist Ct Nassau County, First Dist)
In this summary judgment motion State Farm argued that the issue of whether or not the underlying accident was staged was previously decided in two actions resulting in default judgments--the issue had been previously adjudicated and collateral estoppel applies. State Farm also argued that it attached sufficient evidence, independent of the two prior actions. to show that the underlying action was staged.
While the Court found that "there is an identity of issue" defendant must show privity as well:
Given the fact that it is the Defendant's burden to demonstrate "that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party[,]", before collateral estoppel will apply, it is incumbent upon the Defendant to provide proof of when the assignment herein took place. The Defendant, however, has not done so. Moreover, it would appear from the dates of treatment, February 1, 2002 and April 18, 2002, that if there was in fact an assignment of benefits, it occurred prior to the commencement of the special proceedings upon which the Defendant relies, the petitions for which are dated December 2, 2002.
Even more problematic for the Defendant is the fact that the two determinations upon which it relies were rendered on the default of the respondents therein. Before collateral estoppel will apply, the issue in dispute must have been "actually litigated and determined" in the prior action., "If the issue has not been litigated, there is no identity of issues between the present action and the prior determination. An issue is not actually litigated if, ... there has been a default ...."
The Defendant having failed to demonstrate that the Plaintiff herein was in privity with its assignor in the prior proceedings upon which the Defendant relies, and the prior proceedings having resulted in orders entered on default, they shall not be given preclusive effect in the matter presently before this court. The question remains, however, whether or not the Defendant has demonstrated that the alleged accident of January 11, 2002 was staged, as a matter of law. This question must be answered in the negative.
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At the outset it is noted that the papers submitted in support of the Defendant's motion are not in admissible form sufficient to support a summary judgment motion. The affidavit of Erin K. Lawler, the Defendant's investigator, makes clear that she does not have any personal knowledge and bases her opinion of fraud on a number of documents obtained, inter alia, from the Defendant and the Department of Motor Vehicles, along with conversations she allegedly had with members of the New York City Police Department and the insurance company of the alleged adverse vehicle...Simply annexing documents to the moving papers, without a proper evidentiary foundation is inadequate. [*4]
The Defendant also relies upon what are represented to be a number of inconsistencies in recorded statements and examinations under oath allegedly taken from the Plaintiff's assignor and the other occupants of the vehicle in which he was a passenger....
While the Defendant's attempt to submit the transcripts of these examinations is not barred by the hearsay rule, because the Defendant is not offering the statements contained therein for their truth, , but for the exact opposite reason, to show their falsity and fraud, , the transcripts, nevertheless, are not properly before this court. These transcripts are neither signed nor verified, and, the Defendant offers no explanation as to why. McDonald v. Mauss, 38 AD3d 727, 832 NYS2d 291 (2nd
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