Matter of Levin
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Matter of Levin 2006 NY Slip Op 30393(U) November 29, 2006 Supreme Court, New York County Docket Number: Judge: Jane S. Solomon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 1113012006 I [* 1 ] SUPREMECO , JA# T E OF gwQm NEW YORK - NEW YORK PRESENT: COUNTY PART Index Number: 400161/2001 LEVIN, NEIL D. vs INDEX NO. AMERICAN AGENTS INSURANCE MOTION DATE s - Sequence Number : 049 6/ ~ 4 6 MOTION SEQ. NO. CONFIRM/REJECT REFEREE REPORT MOTION CAL. NO. Thr following papers, numbered 1 tp Notice of Motion/ Order to Show Caure were read O n - t h h motlon to/for - Affldavits - Exhlbltm ... r Answering Affidavits - Exhlblts Replying Affidavits Dated: Check one: ' v M F I N A L DISPOSITION Check if appropriate: )# N!#fUAL 1-11 DO NOT POST E s. SOLoMdf'. DISPOSITIQN I ' REFERENCE I 3 [* 2 ] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 55 X l l l - l l - _ _ _ _ _ _ _ _ _ _ _ - l _ - - - - - - _ _ _ _ - _ - - - - - - - In the Matter of the Application of m D N E I L D. LEVIN, as Superintendent of DECISIOU Insurance of the State of New York, f o r an order t o take possession of the p r o p e r t y and liquidate Index No. 400161/01 0 - AMERICAN AGENTS INSURANCE COMPANY JANE S . SOLOMON, : J. T h e Superintendent of I n s u r a n c e of the State of N e w York ( Superintendent ) moves f o r an o r d e r confirming the decision of referee Curtis F a r b e r ( Referee ) issued in connection with a claim for benefits asserted a g a i n s t a policy issued by a liquidated i n s u r a n c e company, American Agents Insurance Company ( AAIC ) by policyholders named Gregory Maugeri ( Maugeri ) and Joanne Maugeri. Maugeri cross-moves for a n order v a c a t i n g the referee s decision, and requests that a new h e a r i n g be held pursuant to CPLR 4319. F o r the reasons belo is g r a n t e d and the cross-motion is d e n i e d . Maugeri filed a claim for h i s AAIC policy, alleging that it had been stolen and su recovered in a damaged condition. After investigation, A ? C A% $ disclaimed by a l e t t e r d a t e d January 12, 2001, on the g r o u n d s that Maugeri failed to cooperate w i t h the investigation, that the claim was fraudulent because he had made material misrepresentations and f a l s e statements in the presentation of [* 3 ] his claim. Notice of Motion, Exhibit A ( L e t t e r from AAIC to Maugeri, dated J a n u a r y 12, 2 0 0 1 [Disclaimer L e t t e r ] ) . According to Maugeri, he l e a s e d a 2 0 0 0 GMC Envoy In t h r o u g h the G e n e r a l Motors Acceptance Corporation ( GMAC ). March 2000, missing. he awoke one morning to find that t h e truck was A few days or w e e k s later (Maugeri gave conflicting testimony), it was recovered in a b a d l y damaged condition. The truck was fixed, at significant expense, and s t o r e d by the repair shop pending payment by AAIC. Maugeri p u t in a c l a i m f o r r e p a i r b i l l s , s t o r a g e and renting an a l t e r n a t e vehicle, and also to recover f o r allegedly s t o l e n electronic audio and video equipment. After AAIC disclaimed, GMAC paid the r e p a i r and storage bill. GMAC sued Maugeri in Supreme Court, Kings County t o recover t h e money it p a i d , and he in turn sued AAIC as a t h i r d - p a r t y defendant. In the meantime, AAIC went i n t o liquidation, so Maugeri s c l a i m was presented to the Superintendent f o r payment. P u r s u a n t to an o r d e r d a t e d F e b r u a r y 5, 2001, I declared AAIC insolvent and e n j o i n e d all persons from prosecuting a n y actions against AAIC, and d i r e c t e d that claims against AAIC be presented to the Superintendent u n d e r Articles 7 4 and 7 6 of the Insurance Law. In a May 29, 2 0 0 1 o r d e r , I appointed the Referee to h e a r and take evidence and r e p o r t to the court w i t h respect of claims presented to t h e Superintendent as AAIC s liquidator. 2 [* 4 ] Pursuant to t h e s e orders, t h e Referee held a h e a r i n g on Maugeri s claim on November 10, 2005. T h r e e witnesses t e s t i f i e d : Maugeri, Joseph Yannone ( Yannone ), the investigator who h a n d l e d t h e claim f o r AAIC, and Richard Pacheco ( P a c h e c o ) , a locksmith and f o r e n s i c examiner who testified a s an expert on AAIC s behalf Maugeri testified r e g a r d i n g h i s claim, b u t gave COnfliCtlng answers r e g a r d l n g the circumstances of the alleged t h e f t , when the vehicle was recovered, who paid to i n s t a l l the e l e c t r o n i c equipment (or if it was p a i d for a t a l l ) , and o t h e r matters. H e t e s t i f i e d that the vehicle was towed by the police to t h e Done R i t e Auto Body Repair Shop ( Done R i t e ) , a repair s h o p a few blocks from where the vehicle was r e c o v e r e d , and t h a t he d i d not request that it be towed there. Yannone, the investigator, s t a t e d that Maugeri also made conflicting statements to h i m regarding the circumstances of the theft. He t e s t i f i e d t h a t Maugeri told him t h a t he had requested t h a t the police tow the vehicle to Done R i t e . He had refused to have the car towed to a repair s h o p recommended by AAIC. Yannone also testified that when he f i r s t i n s p e c t e d the v e h i c l e , the door a n d ignition l o c k s were i n t a c t , and the windows were undamaged. A subsequent i n s p e c t i o n revealed t h a t the l o c k s had been tampered w i t h and the windows b r o k e n , and he o p i n e d that someone had done that to give the appearance of a 3 [* 5 ] forced entry. Pacheco f u r t h e r opined that the evidence showed that the ignition lock system had not been bypassed, so the only way the vehicle could have been moved was by starting t h e engine using a key. All the k e y s were accounted f o r , and t h e circumstances indicated that the truck had not been moved with a tow t r u c k or a flat bed t r u c k . H e a l s o n o t e d that it appeared that t h e door and i g n i t i o n l o c k s had been tampered w i t h between the time of the o r i g i n a l investigation and h i s inspection. The implication of t h e testimony given by Yannone and Pacheco is that t h e vehicle was not s t o l e n ; t h a t t h e claim f o r stolen electronic equipment is not genuine; that the vehicle was intentionally damaged, requiring substantial repairs at great expense; that the condition of the vehicle was altered while s t o r e d a t Done Rite to conform to Maugeri's prior statements r e g a r d i n g the circumstances of the t h e f t ; and that Maugeri and/or Done Rite made an effort to create the false appearance that t h e damage was the r e s u l t of a t h e f t so its repair would b e paid b y insurance. The Referee agreed w i t h the Liquidator that there is clear and convincing evidence of fraud, and that Maugeri d i d n o t establish t h a t he suffered a l o s s by t h e f t covered under the policy. T a k e n as a whole, the testimony b e f o r e the Referee supports this conclusion. The court also is mindful that the 4 [* 6 ] Referee had the opportunity to observe t h e testimony i n person and was in a better position to determine witness credibility. In s u p p o r t of h i 5 cross-motion, Maugeri's counsel argues t h a t the only basis for AAIC's disclaimer was his f a i l u r e to p r o v i d e a receipt for the purchase of a $100 computer game. This contention p a t e n t l y misconstrues the testimony received at the hearing. Maugeri also contends t h a t fraud was n o t a basis for the disclaimer. This is simply I n c o r r e c t , s i n c e f r a u d specifically stated as a basis for the disclaimer. i s The Disclaimer L e t t e r s t a t e s that Maugeri c o n c e a l e d and misrepresented material f a c t s and circumstances in connection w i t h the claim, and made f a l s e statements in connection w i t h the claim. T h e r e f o r e , l a c k of disclaimer based on fraud can n o t be a basis for r e j e c t i n g the Referee's report. As part of his cross-motion, Maugeri contends that he is entitled to a new hearing u n d e r CPLR 4319 because the Referee was late in filing his decision. The Referee filed his decision two and a h a l f months a f t e r t h e hearing. CPLR 4319 provides that: The decision of a referee shall comply w i t h t h e requirements for a decision o f the c o u r t and s h a l l s t a n d as the decision of the c o u r t . Unless otherwise specified in the order of reference, the r e f e r e e shall file h i s decision w i t h i n 3 0 days after the cause o r matter is finally submitted. If it is n o t f i l e d w i t h i n the r e q u i r e d time, upon the motion of a p a r t y b e f o r e it is f i l e d , the c o u r t may g r a n t a new trial and, in t h a t 5 [* 7 ] event, t h e r e f e r e e s h a l l n o t be e n t i t l e d to a n y fees. This branch o f Maugeri's cross-motion must be denied because CPLA 4319 s p e c i f i e s t h a t such r e l i e f can only be granted if made by the motion of a p a r t y before the decision is f i l e d . But t h i s cross-motion is d a t e d May 3 0 , 2 0 0 6 , more than f o u r months after CPLR 4319 does n o t p r o v i d e a decision was f i l e d . t h e Referee's basis for a disappoinced litigant to get a rnuLLigan. F i n a l l y , Muageri a r g u e s f o r t h e f i r s t t i m e i n r e p l y t o his cross-motion t h a t the disclaimer is invalid b e c a u s e it was untimely made. The initial c l a i m was made in March 2 0 0 0 , disclaimer w a s n o t made until J a n u a r y 2001. Maugeri's and the attorney made lengthy closing arguments, and concluded t h a t "The main issue is that there was n o t a receipt produced and they f a i l e d to debunk a n y of the possible t h e o r i e s for why this car might of been stolen and how it was s t o l e n . " Transcript of Hearing, annexed a s E x h i b i t D t o t h e Notice of Motion, 140. In the cross- motion, Maugeri lists n i n e separate bases for why the Referee's No mention is made of late r e p o r t s h o u l d not be confirmed. disclaimer. Maugeri also fails to allege lateness as a bar to disclaimer i n his t h i r d - p a r t y complaint against AAIC i n Kings C o u n t y Supreme C o u r t . While l a t e disclaimel: may have been a valid basis for challenging AAIC's a c t i o n s had it been p r e s e n t e d , Maugeri's 6 [* 8 ] f a i l u r e t o p l e a d i t i n t h e t h i r d - p a r t y complaint o r t o raise it at t h e hearing means that he cannot now r e l y on it to maintain t h a t t h e Referee d i d n o t p r o p e r l y consider the evidence, f a i r l y and free of bias, s u c h that h i s decision must be v a c a t e d . Aff. Of I r a Scott Meyerowitz, E s q . , See in opposition to the motion and in support of t h e cross-motion, at paragraphs 4 - 6 . Accordingly, it h e r e b y is ORDERED that the motion t o confirm the Referee's r e p o r t is g r a n t e d , and the r e p o r t h e r e b y is confirmed; and the cross- motion to v a c a t e the order or to d i r e c t a new h e a r i n g is denied. Dated: November ENTER: 2 J.S.C. G:\SHARED\061129 American Agents Ins Co c o n f i r m ref.wpd 7
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