PT PC CRYSTAL DUNBAR v. Liberty Mutual Insurance Company, Defendant (2026)

The defendant Liberty Mutual Insurance Company of New York has moved pursuant to CPLR § 3212 seeking summary judgement dismissing the action on the grounds the accident was staged. The plaintiff has opposed the motion. Pursuant to CPLR § 2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-44 and now renders the following determination.

On August 4, 2024 a vehicle driven by Rakesh Sookralli was involved in an incident with a vehicle that left the scene. The assignor, Crystal Dunbar, a passenger in the vehicle driven by Sookralli, sought No-Faults benefits in the amount of $2,133.69. Sherry Leak was also a passenger in the vehicle. The defendant, the insurer of the assignor refused the payment on the grounds the incident was staged. The plaintiff commenced this action seeking payment and the defendant duly answered. The three occupants all provided examinations under oath and testified concerning the accident. The defendant has now moved seeking summary judgement dismissing the action arguing there are no questions of fact the action should be dismissed. They assert there is evidence which establishes as a matter of fact that the incident was staged. As noted, the motion is opposed.

Conclusions of Law

Earlier cases disagreed on the proper standard of proof necessary to establish a collision was staged. In JSI Expert Service v. Liberty Mutual Insurance Company, 7 Misc 3d 1009(A), 801 NYS2d 235 [Civil Court Kings County 2005] the court held proof of a fraudulent and hence a staged incident must be established by clear and convincing evidence. The court applied this standard based upon the general rule concerning establishing fraud. However, in A.B. Medical Services PLLC v. State Farm Mutual Auto Insurance Company, 7 Misc 3d 822, 795 NYS2d 843 [Civil Court Kings County 2005] the court explained that a staged collision had been characterized as a defense based upon lack of coverage, not fraud per se, and a higher measure of proof was not required. The split was resolved and the proper standard is a preponderance of the evidence. As the court explained in V.S. Medical Services P.C., v. Allstate Insurance Company, 25 Misc 3d 39, 889 NYS2d 360 [Appellate Term Second Department 2009] "defendant was not required to establish that the subject collision was the product of fraud, which would require proof of all of the elements of fraud, including scienter by clear and convincing evidence" (id) Rather, an insurer could "establish this defense by a preponderance of the evidence" (id).

Therefore, "an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance" (National General Insurance Online Inc., v. Blasco, 210 AD3d 786, 177 NYS3d 350 [2d Dept., 2022]). In truth, the intentional nature of the event does not have to be rooted in efforts to defraud an insurance company, rather, any reason the event is intentional will foreclose the availability of No-Fault benefits (see, V.S. Medical Services P.C., v. Allstate Insurance Company, 11 Misc 3d 344, 811 NYS2d 886 [Civil Court Kings County 2006]). In seeking summary judgement dismissing the action on the grounds the accident was staged the insurance company bears the burden of presenting sufficient proof by a preponderance of the evidence in admissible form establishing the absence of any material fact (Repwest Insurance Company v. Sasan Family Chiropractic P.C., 2016 WL 4000626 [Supreme Court New York County 2016]). Thus, mere unsubstantiated suspicions are insufficient to establish the necessary proof required to conclude an accident was staged (AB Medical Services PLLC v. Eagle Insurance Company, 3 Misc 3d 8, 776 NYS2d 434 [Appellate Term Second Department 2003]).

The issue that must be addressed is the modicum of evidence necessary to establish, beyond any question of fact, that the incident was staged. Of course, without an admission by one of the participants, an unlikely scenario, it is difficult to imagine direct evidence supporting such a scheme (V.S. Medica Services P.C. v. Allstate Insurance Company, (supra). Therefore, proof of a staged incident will necessarily be based upon circumstantial evidence (American Transit Insurance Company v. Nexray Medical Imaging P.C., 78 Misc 3d 1242(A), 188 NYS3d 916 [Supreme Court Kings County 2023]). The circumstantial evidence presented in this case consists of contradictions between the passengers and the driver of the vehicle provided in examinations under oath as well as assertions the injuries alleged could not have been caused by the collision. Thus, the defendant submitted the affirmation of Colin Krick, a senior investigator in the special investigative unit for Liberty Mutual. The affirmation states that there were four factors which prompted an investigation the incident may have been staged. First, the incident was consistent with other intentional events. Second, the two passengers allegedly injured hired the same attorney and treated at the same medical facility. Third, the medical treatment was inconsistent with a low velocity collision and lastly, the damage to the vehicle was inconsistent with the medical treatment received. The remainder of the affirmation highlights the inconsistencies and contradictions in testimony provided at examinations under oath by the three participants in the vehicle at the time of the accident, namely the driver Rakesh Sookralli and the passengers Sherry Leak and Crystal Dunbar.

First, other than the conclusory assertions regarding the medical treatment sought and the extent of the damage to the vehicle and the severity of the collision, the affirmation does not explain in any manner how the injuries alleged are indicative of a staged event. Surely, no conclusive evidence has been established in this regard eliminating all questions of fact. Indeed, the affirmation does not address these facts at all, other than to note they existed. Therefore, the mere fact the defendant believes the injuries were inconsistent with the impact of the collision does not establish, beyond any question, that the accident was staged.

Concerning the inconsistencies noted in the testimonies provided, it is true that inconsistencies between various occupants of a vehicle can be used to support the contention the incident was staged or fraudulent (State Farm Fire and Casualty Company v. Advanced Recovery Equipment and Supplies LLC, 2022 NY Slip Op 32805(U) [Supreme Court New York County 2022]). However, the inconsistencies must relate to the subject accident. Thus, in Pavlova v. Allstate Insurance Company, 62 Misc 3d 1207(A), 112 NYS3d 871 [Supreme Court Kings County 2019] the court conceded there were inconsistencies between the testimonies of the various individuals that were involved in the accident, however, there was no explanation how those inconsistencies demonstrated the accident was staged. The court specifically noted that the "defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged" (id). Again, in State Farm Mutual Auto Insurance Company v. Allmed Merchandise and Trading Inc., 2022 WL 596992 [Supreme Court New York County 2022] the court held that inconsistencies surely raised issues of credibility but they were, standing alone, insufficient to support the conclusion the accident was staged as a matter of law. Further, in Hereford Insurance Company v. All Nations DME Corp., 2026 WL 147211 [Supreme Court New York County 2026] the court held that even inconsistencies about the accident, such as the time and place and the whereabouts of the participants prior to the accident does not in any way demonstrate the accident was fraudulent.

The affirmation of Mr. Krick concludes that "Liberty formed a founded belief that the incident of August 4, 2024, was an intentional act consistent with targeting livery drivers, and that CRYSTAL DUNBAR, and Sherry Leak intentionally misrepresented material facts in furtherance of the fraudulent scheme of targeting unsuspecting livery drivers by deliberately staging an incident to procure monetary gain and valuable medical services" (see, Affirmation of Colin Krick, ¶24 [NYSCEF Doc. No. 9]). That conclusion does not explain how the founded belief was reached, other than to declare that the inconsistencies compel such a result. Thus, a "founded belief" of a staged event is insufficient to obtain summary judgement (KOI Medical Acupuncture v. State Farm Insurance Company, 16 Misc 3d 1135(A), 847 NYS2d 902 [District Court Nassau County 2007]). Indeed, the affirmation of Mr. Krick is solely based on inconsistencies between the occupants of the vehicle at the time of the collision. While the inconsistencies speak for themselves and surely raise questions whether the occupants are being truthful, the investigator provides no measure by which the insurer seeks to establish the incident was staged as a matter of fact. For example, as noted in the investigator's affirmation, Sherry Leak testified that Crystal Hudson worked as a flight attendant while Crystal Hudson herself testified that she had not worked as a flight attendant in several years (see, Affirmation of Colin Krick, ¶19 [NYSCEF Doc. No. 9]). While that inconsistency, if not adequately explained, surely raises questions of fact as well as credibility, it provides no support to leap to the conclusion the incident was, therefore, staged. Moreover, numerous inconsistencies found within testimonies provided by participants do not accumulate and reach some point where a definitive determination of a staged incident can be pronounced. One inconsistency may raise credibility issues as noted. Many inconsistencies merely increases credibility questions of the witnesses that must be addressed. Therefore, inconsistencies about where a passenger lived or worked or which passenger called for a taxi or where they were traveling when the incident occurred does not increase the conclusion of a staged incident at all. It surely increases the likelihood the witnesses are not being truthful and the more inconsistencies that are presented the harder it may be to satisfactorily explain them. However, they do not, as a matter of fact, demand the conclusion the incident was staged.

It is well settled that "it is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (see, Vega v. Restani Construction Corp., 18 NY3d 499, 942 NYS2d 13 [2012]). Therefore, summary judgement cannot be granted when facts are in dispute (Young v. Kamath, 246 AD3d 1144, 252 NYS3d 236 [2d Dept., 2026]).

In this case, clearly, credibility determinations are at issue. Precisely for these reasons summary judgement must be denied.

So ordered.

Dated: June 4, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Mark Kagan, J.