Espinoza v. Rockaway S., L.P.

Espinoza v Rockaway S., L.P. 2025 NY Slip Op 30157(U) January 9, 2025 Supreme Court, Kings County Docket Number: Index No. 514047/2020 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 514047/2020 WILED: KINGS COUNTY CLERK 01/15/20 25 03:23 P~ NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/15/2025

At an [AS Trial Term, Part 75 of the Supreme Court of the State of New York, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, New York on PRES ENT: the 9th day of January 2025

HON. ANNE J. SWERN, J.S.C.

WILMER MAURICIO ESPINOZA, ORDER

Plaintiff(s), Index No.: 514047/2020

-against- Calendar No.: 24

ROCKAWAY SOUTH, L.P., MONADNOC K Motion Seq.: 006 CONSTRUCT ION, INC., and WIN FAR ROCKAWAY HOUSING DEVELOPM ENT FUND CORPORATI ON, Defendcmt(s).

Recitation ofthefollowin gpapers as required by CPLR 2219(a): Papers Numbered Notice of Motion, Affirmation and Exhibits (NYSCEF 68-88) ............................................................................ 1, 2 Affirmation in Opposition and Exhibits (NYSCEF 89-108) ................................... 3 Reply Affirmation (NYSCEF 109) ......................................................................... .4

Upon the foregoing papers and afier oral argument, defendants 'motion for an order

pursuant to CPLR § 3025 [b] to amend their answers is denied as follows:

This is an action for personal injuries sustained by plaintiff in a work-related accident on

6/30/2020 (NYSCEF 1). 1 Defendants have served a motion to amend their respective answers to

include an affirmative defense of fraud based on a civil Racketeer [ntluenced and Corrupt

Organizations (RICO) complaint filed in the United States District Court, Eastern District of

1 Defendants did not attach the complaint as an Exhibit to the motion. Therefore, the Court references the complaint within the NYSCEF docket. Espinoza v. Rockaway South, L.P., et al. 514047/2020 Page 1 of 4

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New York, Docket #1 :24-CV-01549-NG-LB (NYSCEF 71). This RICO complaint names

plaintiff's treating physicians and attorneys as defendants.

The proposed affirmative defense reads as follows:

That Plaintiff's accident and his subsequent medical treatment are and were fraudulent and said occurrence and treatment were a product of a fraudulent scheme and fraudulent medical treatment in an effort to seek recovery in excess of the real value of any claim. Defendants also allege that Plaintiff's physicians likewise provided excess and fraudulent medical treatment and services in an effort to bolster Plaintiff's lawsuit and enrich themselves from said improper and medically unnecessary procedures and appointments (NYSCEF 74, pp.6, 19).

Defendant has failed to plead with specificity and put forth evidence to establish that the

happening of plaintiff's accident was (1) fraudulent and (2) part of a fraudulent scheme (See st Linares v. City ojNew York, _ AD3d _, 2024 NY Slip Op 06156 [1 Dept. 2024 ]). The RICO

complaint does not ( 1) set forth allegations that plaintiff's lawsuit is part of the RICO enterprise

and (2) include plaintiff as a named defendant or an alleged non-party co-conspirator. The notice

of expert exchange relied upon by defendants does not speak to the happening of plaintiff's

accident (NYSCEF 72).

Next, contrary to defense counsel's arguments (NYSCEF 69, ,fl2), the expert report also

does not ··establish a good faith basis for the amendment" concerning plaintiff's medical care and

treatment ( Guzov v. Manor Lodge Holding Corp., 13 AD3d 482, 483 [2d Dept. 2004] [While

leave to amend should be freely given, a proposed amendment cannot be based on bare legal

conclusions and factual allegations.]).

The expert's report sets forth conclusory statements that plaintiff was extremely evasive

when answering his questions (Id.; NYSCEF 72, p.13) but does not state that plaintiff knowingly

made material misrepresentations concerning his care and treatment. Rather, the expert states

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without explanation or specificity that plaintiff offered several non-responsive answers

(NYSCEF 72, p.13 ). Without evidence of knowing material misrepresentations by plaintiff (See

Linares v. City of New York, supra), there is no good faith basis to establish an affirmative

defense of fraud against him (Guzov v. Manor Lodge Holding Corp., 13 AD3d 483 ).

Moreover, "the unproven allegations of fraud against plaintiff's attorneys and medical

providers in the RICO complaint do not, without more," establish an affirmative defense of

fraud (Linares v. City of New York, supra). It is noteworthy that the expert acknowledges that the

alleged fraudulent procedures have not yet been approved [by Workers Compensation]

(NYSCEF 72, p.13 ). Therefore, defendants' remedy is to challenge the approval of these

procedures at the Workers Compensation Board.

The decisions submitted by plaintiff are in accord with the First Department in Linares v.

City of New York, supra (NYSCEF I 03-108). The short form order submitted by defendants in

support of their motion does not provide a legal analysis for granting leave to amend defendants'

answer (Gamboa v. Baro Park, et al., 506826/2018, NYSCEF 73). It is unknown which

arguments of defense counsel were credited in the decision. In fact, the Judge who granted leave

to amend an answer to assert fraud as a defense based on the RICO complaint in Gamboa v. Baro

Park, et al., supra, denied leave to amend in Mora v 1-10 Bush Terminal Owner, LP, et al.,

3409/2015 (NYSCEF l 05), Diaz v. Cornell University, 8899/2015 (NYSCEF 106), and Maya v.

Liberty 58-./0 Borden Ave LLC, et al., 512674/2019 (NYSCEF 107).

The question of whether defendants may cross-examination plaintiff and his treating

physicians at trial concerning the allegations in the RICO complaint, is referred to the trial court.

Accordingly, it is hereby

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[FILED: KINGS COUNTY CLERK 01/15/2025 03:23 P~ INDEX NO. 514047/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 01/15/2025

ORDERED that defendants' motion for an Order pursuant to CPLR § 3025 [b] is denied

in its entirety.

This constitutes the decision and order of the Court.

ENTER:

Hon. Anne). M'ern, J.S.C. Dated: 1/992025 For Clerks use only:

MG _ _

MD__,(~_

Motion seq. # (p

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