RX v. Liberty Mutual Insurance Company, Defendant. (2026)

Recitation, as required by CPLR § 2219(a), of the papers considered in review of this Motion:

Papers

D's Motion & Supporting Documents 5-40

P's Affirmation in Opposition 42

P's Supplemental Submission of Decisions 45

Upon the foregoing cited papers and after oral argument, the Decision and Order on Defendant's motion for summary judgment is as follows:

Defendant's motion is DENIED. The Court has reviewed the record and finds that the admissible evidence presented is insufficient at the current case posture to establish Defendant's defenses that the assignor made material representations, the injuries did not arise out of a covered loss, and/or that the alleged accident was a staged, intentional act for which there is no insurance coverage (Affirmative Defenses 16, 17, and 18).

The matter shall proceed to trial on June 22, 2026 in Part 58VT, as the Court finds that there are triable issues of fact with respect to Defendant's defenses of material misrepresentation, non-covered loss, and staged/intentional accident.

The Honorable Sandra Elena Roper recently found in the context of a no-fault insurer's motion for summary judgment asserting a staged accident that "[t]he prima facie burden to viably satisfy a staged accident motion for summary judgment is indeed a high one." (Med. Diagnostics Ctr. v Ameriprise Ins. Co., 88 Misc 3d 1225(A), 2026 NY Slip Op 50235(U) [Civ Ct, Kings County 2026] [citations omitted].)

Consistent with that, the Court finds that Defendant's admissible evidence—including its investigator affirmation (NYSCEF No. 8)—is insufficient at this stage of the proceedings for the Court to find that Defendant has established its material misrepresentation, lack of covered loss, and/or staged accident defenses by a preponderance of the evidence. (See V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39, 41 [2d Dept 2009] [applying preponderance of the evidence standard in such circumstance].) "[I]t 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)." (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]. See also Med. Diagnostics Ctr., 88 Misc 3d 1225(A) ["Where there is but a scintilla of a material issue of fact defeats a motion for summary judgment, obviating the shifting of the burden to non-movant for rebuttal"; further expressing concerns regarding finding a staged accident at the summary judgment stage where the conspiratorial implications "are not merely civil in nature but also expose[ ] the [participants in the alleged conspiracy] to criminal prosecution"].)

Inconsistencies in witness testimony raise issues of credibility but are, standing alone, insufficient to support a conclusion that an accident was staged as a matter of law. (See Parisien v Erie Ins. Co. of NY, 88 Misc 3d 1241(A), 2026 NY Slip Op 50400(U) [Civ Ct, Richmond County 2026], citing State Farm Mut. Auto. Ins. Co. v Allmed Merch. and Trading, Inc., 2022 NY Slip Op 30624(U) [Sup Ct, NY County Feb. 28, 2022].) Much of the evidence that Defendant presents to suggest that a staged accident occurred here is through showing inconsistencies in various examinations under oath (EUOs). (See Pavlova v Allstate Ins. Co., 62 Misc 3d 1207[A], 2019 NY Slip Op 50016[U], *3 [Civ Ct, Kings County 2019] ["Upon a review of the EUO transcript, the court notes that while [the witnesses'] testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient."] There is no witness admission here that the accident was staged or intentional. "Although defendant demonstrated that it possessed a 'founded belief that the alleged injuries do not arise out of an insured incident,' defendant failed to submit sufficient evidence in admissible form to establish that conclusion as a matter of law, so as to warrant dismissal of the complaint." (Parisien v Esurance, 81 Misc 3d 127(A), 2023 NY Slip Op 51235(U) [App Term, 2d Dept 2023], quoting Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997].)

The matter shall therefore proceed to trial on June 22, 2026 in Part 58VT.

This constitutes the Decision and Order of the Court.

Dated: June 18, 2026

Hon. Javier Ortiz, J.C.C.

Kings County Civil Court

Javier Ortiz, J.