SHAPIRO v. State Farm Fire and Casualty Insurance Company, et al., Defendants. (2018)

Supreme Court, Appellate Division, First Department, New York.

Mark SHAPIRO, Plaintiff–Appellant, v. Anthony TARDALO, et al., Defendants–Respondents, State Farm Fire and Casualty Insurance Company, et al., Defendants.

7951N

Decided: December 27, 2018

Friedman, J.P., Sweeny, Kapnick, Kahn, Singh, JJ.

The Zuppa Firm, Garden City (Raymond J. Zuppa of counsel), for appellant. Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Barry Jacobs of counsel), for Anthony Tardalo and The National Insurance Crime Bureau, respondents. Weil Gotschal & Manges LLP, New York (Gregory Silbert of counsel), for Dallas Ragan and Farmers Insurance Company, respondents. Eversheds Sutherland (US) LLP, New York (Kymberly Kochis of counsel), for Government Employees Insurance Company, GEICO General Insurance Company and GEICO Indemnity Insurance Company, respondents. Manning & Kass, Ellrod, Ramirez, Trester, LLP, New York (Jeanette L. Dixon of counsel), for Travelers Indemnity Company and Travelers Home and Marine Insurance Company, respondents. Dechert LLP, New York (Douglas W. Dunham of counsel), for State Farm Mutual Automobile Insurance Company, respondent. Bruno, Gerbino & Soriano, LLP, Melville (Richard C. Aitken of counsel), for Metropolitan Property and Casualty Insurance Company and MetLife Auto and Home Insurance Agency, Inc., respondents.

The court did not abuse its discretion in denying plaintiff leave to file a second amended complaint, where the proposed causes of action were precluded by the Noerr–Pennington doctrine (see Eastern R.R. Presidents Conference v. Noerr Motor Frgt., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 [1961]; United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 [1965] ). That doctrine provides immunity to defendants for their cooperation with the government in the criminal investigation against multiple defendants, including plaintiff, for alleged no-fault fraud, notwithstanding plaintiff's allegations that defendants turned over false evidence against him, or that he was ultimately acquitted.

Further, plaintiff does not allege facts from which it might reasonably be inferred that this case falls within the “sham” exception to the Noerr–Pennington doctrine (Alfred Weissman Real Estate v. Big V Supermarkets, 268 A.D.2d 101, 109, 707 N.Y.S.2d 647 [2d Dept. 2000] ). By contrast, the record supports the inference that defendants had a genuine pecuniary interest in supporting governmental investigation of insurance fraud (see generally Weissman, 268 A.D.2d at 109, 707 N.Y.S.2d 647).

We have considered plaintiff's remaining arguments and find them unavailing.

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