Assume a case wherein the defendant driver makes a right hand turn into a crosswalk and strikes the plaintiff in the crosswalk. Also assume the police report correctly documents the scenario and that there is no evidence that plaintiff “darted out” into the way of the injurious vehicle. As a matter of law, defendants’ driver negligence should be deemed the sole proximate cause of the accident.

This Motion Is Proper and Timely
Summary judgment motions may be brought at any time after an issue is joined. CPLR 3212. Completion of discovery is not a requisite before the court can grant a summary judgment motion. Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023,1026 (1983); Naryaev v. Solon, 6 A.D.3d 510 (2d Dep’t 2004); Herba v. Chichester, 301 A.D.2d 822 (3d Dep’t 2003). “The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient.” Naryaev, 6 A.D.3d at 510; Jones v. Gameray, 153 A.D.2d 550 (2d Dep’t 1989). A party opposing summary judgment on the basis of requiring discovery must prove that he is “not merely seeking a fishing expedition.” Kaltsas v. Solow, 15 Misc.3d 1124(A) (Westchester Cty. S.Ct. 2007). It is true that a party opposing a motion for summary judgment may claim that facts essential to justify opposition exist which are within the exclusive knowledge and possession of the moving party and, thus, that the motion should be delayed until after some discovery. See CPLR §3212(f). However, without an evidentiary showing by the opposing party, “mere speculation or conjecture” is insufficient to support this conclusion. Pank v. Village of Canajoharie, 275 A.D.2d 508, 509 (3d Dep’t 2000).
“A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.” Bailey v. New York City Transit Authority, 270 AD2d 156, 157 (1st Dept.2000) [emphasis added]; Zuckerman v City of New York, 9 N.Y.2d 557 (N.Y. 1980). (“The opposition papers submitted herein consists solely of the affirmation of an attorney. As such, the defendant has failed to submit evidence in admissible form to raise a triable issue of fact. We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”)
Defense counsel may argue that because depositions have not yet been held in this case, the within motion is premature. This argument must fail. It is well settled that the “defendant’s failure to raise any factual issues to absolve him of liability or even submit a sworn statement of facts or to credibly explain the failure to do so defeats the need for discovery. Since defendant is the party with knowledge of the factual circumstances as to how he collided with the front vehicle, discovery would serve no purpose.” Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 (1 Dept. 1999). [Emphasis added]. Furthermore, “the defendants’ purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts.” Abramov v. Miral Corp., 24 A.D.3d 397, 805 N.Y.S.2d 119 (2 Dept. 2005). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion.” Kimyagarov v. Nixon Taxi Corp., — A.D.3d —-, — N.Y.S.2d —-, 2007 WL 4127688, 2007 N.Y. Slip Op. 09208 (2 Dept. 2007). [Emphasis added]. As the Appellate Division recently held in a decision affirming the trial court’s granting of partial summary judgment on liability to the plaintiff in a rear-end automobile accident case, “…in view of the fact that the defendants had personal knowledge of the relevant facts underlying the accident, their purported need to conduct discovery does not warrant denial of the motion.” Emil Norsic & Son, Inc. v. L.P. Transp., Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 (2 Dept 2006).
Summary Judgment is warranted

In the seminal case of Andre v. Pomeroy, 362 N.Y.S.2d 131, 133 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability. (“when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny other litigants the right to have their claims properly adjudicated”).

In the scenario at bar, there is likewise no genuine issue as to the negligence of defendants. The driver drove his car directly into a pedestrian crosswalk without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements. See, VTL § 1111; NYC Traffic Rules § 4-04 [emphasis added] (“the operator of a vehicle shall yield the right of way to a pedestrian crossing within a crosswalk”). Furthermore, drivers also have a common law duty to see “that which out to be seen”. See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2nd Dep’t 1986). Failure to do so is negligence as a matter of law. See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2nd Dep’t 2002).

New York State Vehicle and Traffic Law states:
§ 1111. Traffic-control signal indications

(a) Green indications:

1. Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.

2. Traffic, except pedestrians, facing a steady green arrow signal may cautiously enter the intersection only to make the movement indicated by such arrow, or such other movement as is permitted by other indications shown at the same time, except that a U-Turn may be made by traffic facing a left green arrow signal unless a sign prohibits such U-Turn or such U-Turn is in violation of any other provision of law. Such traffic shall yield the right of way to other traffic lawfully within the intersection or an adjacent cross walk at the time such signal is exhibited.

New York law is clear that where a motorist fails to see, and thus fails to yield the right of way to, a pedestrian crossing in a crosswalk with a pedestrian walk signal in his favor, the motorist is entirely at fault for the accident. In Voskin v Lemel, 52 A.D.3d 503, 859 N.Y.S.2d 489 [2nd Dept. 2008] [emphasis added], the court held:

In this case involving an accident between a motor vehicle and a pedestrian, the plaintiff established his prima facie entitlement to summary judgment in his favor by demonstrating that the defendant motorist was negligent in failing to yield the right of way to him while he was crossing a street, within the crosswalk, with the pedestrian “WALK” signal in his favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiff’s case was buttressed by the certified copy of the police accident report containing the defendant’s admission that he did not see the plaintiff and struck him (see Niyazov v Bradford, 13 AD3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465).

See, also, Kirchgaessner v. Hernandez, 40 A.D.3d 437, 836 N.Y.S.2d 170 [1st Dept. 2007]. In Benedikt v. Certified Lumber Corporation, 60 A.D.3d 798, 875 N.Y.S.2d 526 [2nd Dept. 2009] [emphasis added], the court held:

The plaintiffs established a prima facie case for summary judgment in their favor on the issue of liability by demonstrating that the defendant driver failed to yield the right of way to the injured plaintiff, Adina Benedikt, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiffs submitted an affidavit by the injured plaintiff to that effect, which was supported by copies of the police accident reports and the MV-104 report signed by the defendant driver, containing that defendant’s admission against interest that he did not see the injured plaintiff before he struck her (see Niyazov v Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465). The affidavit of the defendant driver, submitted in opposition to the motion, merely raised feigned issues of fact, which are insufficient to defeat a motion for summary judgment (see Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 664 N.Y.S.2d 826; Miller v City of New York, 214 AD2d 657, 625 N.Y.S.2d 271; Garvin v Rosenberg, 204 AD2d 388, 614 N.Y.S.2d 190), and the defendants failed to demonstrate that further discovery was warranted (see Lopez v WS Distrib., Inc., 34 AD3d 759, 760, 825 N.Y.S.2d 516).

Claims by a defendant driver that he or she was looking out for pedestrians crossing and did not see the plaintiff are merely admissions of negligence and do not create material issues of fact. In Sulaiman v. Thomas, 54 A.D.3d 751, 863 N.Y.S.2d 723 [2nd Dept. 2008], the Court reasoned:

In his opposing affidavit, the defendant stated, inter alia, that as he made his right turn onto Sutter Avenue, the intersection and crosswalk were free of pedestrians. As he cleared the intersection, he saw several pedestrians standing on the sidewalk to his right shouting and pointing to the right side of his vehicle. He stopped, exited his vehicle, and only then saw the injured plaintiff lying on the road next to his vehicle. The defendant argued that the injured plaintiff’s negligence was the sole cause of the accident, and that he had stepped off the sidewalk and walked into the right side of the defendant’s vehicle “approximately” three feet east of the crosswalk. The defendant failed to raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269; Abramov v Miral Corp., 24 AD3d 397, 398). His affidavit makes clear that he did not see the injured plaintiff prior to striking him. The defendant also contended that the injured plaintiff was comparatively negligent. However, the defendant’s unsupported speculation that the injured plaintiff was comparatively negligent was insufficient to raise a triable issue of fact (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269).

In summary, there is very solid case law supporting summary judgment in this factual scenario, even before discovery. If the motion is granted, your case is advanced almost directly to the trial stage and any deposition of the plaintiff would be limited to the issue of damages only. Even should the judge lack the fortitude to grant the motion, it is still a worthwhile means of fleshing out the defense, as the opposition to the motion will necessarily include an affidavit from the driver. As such, when we have the benefit of a strong liability case, it is wise to be aggressive.

Assume your case involves an accident which occurred when the defendant driver without warning, pulled abruptly out of a parking spot and struck the side of plaintiff’s vehicle.  If there are no true factual disputes as to the accident scenario, a determination of liability may be made by the court as a matter of law.  The defendant driver may be solely responsible for the accident if he entered the roadway without looking to check for oncoming traffic.  Moreover, if he claims to have checked for traffic, then he is responsible for not seeing it and proceeding into the roadway.  Either way, the liability scenario is bad for the defendant and one may argue there was nothing plaintiff could have done to avoid this collision, particularly if she had already driven past the defendant when he turned his car into the middle or rear portion of her vehicle.  Plaintiff’s own actions, one may argue, were not a factor in the happening of this accident and summary judgment should be granted against the defendants on the issue of liability. 

In the seminal case of Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability.  In Pomeroy, the defendant was driving in heavy traffic, looked away from the road to get something out of her purse and crashed into the car in front of her, injuring its passenger.  The lower courts denied the plaintiff passenger’s motion for summary judgment. In reversing the denial of summary judgment, the Court of Appeals held:

“Since it [summary judgment] deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18).  But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims properly adjudicated.”

 Id., 362 N.Y.S.2d at 133 [emphasis added].

            In the above scenario, there is likewise no genuine issue as to the negligence of the defendant driver.  He pulled his car directly into oncoming traffic without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements.  See, VTL ¶ 1162 (“No person shall move a vehicle which is stopped, standing or parked unless such movement can be made with reasonable safety.”)  [emphasis added].   Furthermore, drivers also have a common law duty to see “that which ought to be seen”.  See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2^nd Dep’t 1986).  Failure to do so is negligence as a matter of law.  See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2^nd Dep’t 2002).  It is clear that the defendant’s negligent actions were the sole and direct cause of the instant action.  

            In Calandra v. Dishotsky, 244 A.D.2d 376 (2^nd Dep’t 1997), a case on point, the defendant driver also pulled out of a parking spot and into a lane of moving traffic, striking plaintiff’s vehicle.  The plaintiff therein moved for partial summary judgment on the issue of liability, which the trial court granted and the Appellate Division upheld.  Id.  The Court found that the defendant driver, under those factual circumstances, could not “create a triable issue of fact as to liability”.  Id. at 377.  See, also, White v. Gooding, 21 A.D.3d 485 (2^nd Dep’t 2005) (summary judgment appropriate where defendant driver pulled out into a lane of traffic without first ascertaining the traffic conditions and struck the plaintiff; thus defendant could not present a triable issue of fact despite her unsupported allegations that plaintiff could have taken some “unspecified action to avoid the accident or that he somehow contributed to its cause”); Irwin v. Mucha, 154 A.D.2d 895 (4^th Dep’t 1989) (plaintiff entitled to summary judgment on issue of liability where defendant driver moved his car forward when it was not safe to do so in violation of VTL ¶1162, and thus struck plaintiff). 

            Moreover, there is no valid argument to be made that plaintiff shared any comparative fault in the accident, particularly if plaintiff had already driven her vehicle past the defendant when he pulled out of a parking spot and struck the rear portion of her vehicle.  It is clear that a driver with the right of way is permitted to presume that other drivers will obey traffic laws that require them to yield and does not have a duty anticipate their negligent actions.  See, e.g., Perez v. Brux Cab Corp., 251 A.D.2d 157 (1^st Dep’t 1998).  Plaintiff had no opportunity to avoid the collision.  As such, plaintiff is entitled to partial summary judgment as a matter of law on the issue of liability as against the defendants.  Moreover, the Court should not permit defendant to raise speculative arguments as to how plaintiff might have avoided the accident wholly caused by the defendant.  See, e.g., Zuckerman v. City of New York, 427 N.Y.S.2d 595, 562 (1980) (mere “expressions of hope or unsubstantiated allegations” are insufficient to defeat a motion for summary judgment).

Based upon the foregoing, one may successfully argue that plaintiff has established liability “sufficiently to warrant the court as a matter of law” to direct judgment in her favor.  See, CPLR 3212[b]; see, also, e.g., Friends of Animals v. Assoc. Fur Mfrs., 46 N.Y.2d 1065, 1067 (1979).  A fair minded court may grant your timely motion on for partial summary judgment on the issue of liability.

It is a clever predicate in that, unlike the allegation of mechanical issues such as a broken tail light, it is nearly impossible to disprove. Moreover, in light  of the current state of the law, once the police have a “valid” reason to pull a defendant over it doesn’t matter if that is the real reason they pulled him over.  That is,  the “pretextual stop” argument has been largely undermined in the wake of Whren v. United States, 517 US 806 (1996), holding in effect that the police officer’s true motive for the car stop is irrelevant so long as he had a valid reason for the stop. This reason may not need to be supported by probable cause in New York, where cases suggest “reasonable suspicion” is sufficient.  People v. Robinson, 97 NY2d 341 (2001).

So, if your client has been pulled over for “failure to signal” what are your tools to fight the constitutionality of the stop? First of all, chances are that he was never issued a ticket, which bears on the credibility of the police officers.  More importantly, and the part that the officers and the DA may fail to focus upon, is that the police must provide testimony which supports the actual statutory infraction.  VTL Section 1163 (turning movements and required signals) states in relevant part that no driver shall:  “turn a vehicle from a direct course or move left or right upon a roadway unless and until such movement can be made with reasonable safety.  No person shall turn any vehicle without giving the proper signal”.  In a recent case, People v. Rice, 810 NYS2d 306 (2006), the Court determined, based upon the above and upon a review of the legislative history, that while a turn may always require a signal, a lane change does not if it can be made safely.  “There was no desire [of the legislature] to add . . . a per se requirement of signaling lane changes as well”.  As such, the law does not “require signaling when a lane change can be made in complete safety without such a signal”.

What is the practical affect of this ruling? In most hearings the police officer will simply state that the defendant was observed making a lane change without signaling. The DA will ordinarily fail to elicit the nature of the roadway, the traffic conditions at the time and how, if at all, the purported lane change endangered other drivers.  IF this latter evidence is not proffered on direct testimony, it is the wise practitioner that does not address it on cross examination lest the officer “fill in the gaps”.  With no evidence that a unspecified “lane change” was made unsafely, any subsequent car stop violates the Fourth Amendment and the New York Constitution and any contraband recovered thereafter should be suppressed as fruit of the poisonous tree.

Spoliation is the destruction or failure to preserve evidence which may be of use in pending or reasonably foreseeable litigation. Traveler’s Indemnity Co. v. CC Controlled Combustion, 2003 NY Slip Op. 5134(U).  The duty of a party to preserve evidence or face sanctions under CPLR 3126 is well established.   See, e.g., MetLife Auto & Home v. Basil Chevrolet, 303 A.D.2d 30 (4th Dep’t 2002). Penalties for failure to comply with disclosure requests are governed by CPLR 3126 and provide that a party’s failure to preserve critical evidence may be deemed spoliation.  The obligation to preserve evidence is borne of a concept of fundamental fairness and, indeed, is a precept of our legal system. “Relevant evidence is critical to the search for truth. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system.” Ortega v. City of New York, Sup. Co., Kings County, Hon. Martin M. Solomon, Index 22913/2004 (decided February 16, 2006), quoting, Oliver v. Stimson Lumber Company, 297 Mont. 336, 334 (1999) [emphasis added].

The Court has sound discretion in determining the appropriate sanctions for spoliation.  Iannucci v. Rose, 778 N.Y.S.2d. 525 (2nd Dept. 2004).  The proposed penalties under CPLR 3126 are not exhaustive, DiDomenico v. C&S Aeromatik Supplies, 252 A.D.2d 41, 49 (2d Dep’t 1998), but may include the significant remedy of striking the offending party’s pleading. Even if the evidence in question was destroyed before the offender became a party, sanctions are still appropriate if the offender was on notice of the potential for litigation or reasonably could have anticipated litigation. Langer v. Well Done, Ltd, 112 Misc.3d 1056(A), 815 N.Y.S.2d 494 (2006); Mudge, Rose, Guthrie, Alexander & Ferdon v. Penguin Air Cond. Corp., 221 A.D.2d 243 (1st Dep’t 1995). That is, if the spoliator knew that the evidence “might be needed” for future litigation, he was under a duty to preserve it. Lowell v. USA, Inc. d/b/a USA Empire Roller Skating Center, 28 A.D.3d 721 (2d Dep’t 2006).

The sanctions for spoliation may be severe. The severity is often measured by the sound discretion of the court in light of the prejudice to the party for whom the evidence is not available. DiDomenico, supra, 252 A.D.2d at 41, 49 (2d Dep’t 1998). In DiDomenico, the Appellate Division found that where the lost or destroyed evidence limits or precludes a party from presenting their claim with “incisive evidence”, “the spoliator’s pleading is properly stricken in order to obviate a trial that is ‘based on rank swearing contests’”.

Moreover, the moving party need not establish that the offending party acted in bad faith. Courts are clear that whether the evidence at issue was lost or destroyed either through ill will or negligence, the prejudicial effect is the same. “[W]hen a party alters, loses or destroys key evidence before it can be examined by the other party’s expert, the court should dismiss the pleadings of the party responsible for the spoliation … Spoliation sanctions … are not limited to cases where the evidence was destroyed willfully or in bad faith…” Squitieri v. City of New York, 248 A.D.2d 201, 202-203, 669 N.Y.S.2d 589 (1st Dept. 1998) [emphasis added]; see, also, Mudge, Rose, supra, 221 A.D.2d at 243 (1st Dep’t 1995); Yi Min Ren v. Professional Steam-Cleaning, Inc., 271 A.D.2d 602, 603 (2d Dep’t 2000) (“Where a crucial item of evidence is lost, either intentionally or negligently, the party responsible should be precluded from offering evidence as to its condition”).  To justify striking of the pleading absent bad faith on the spoliator, however, the court may require the moving party to demonstrate the prejudice as a result of the lost or missing evidence.  See, e.g., Barone v. City or New York, 861 N.Y.S.2d 709 (2nd Dep’t 2008).

For example, the loss of an “Incident Report” made out by a party defendant which presumably details the facts, circumstances and witnesses to an incident, is potentially significant prejudicial to the Plaintiff. Such a report, which is prepared by defendant personnel, may contain the identities of any witnesses to the incident and statements of their respective accounts of the accident. Those witnesses may very well have provided testimony which is favorable to the Plaintiff. The Plaintiff is prejudiced by the non-disclosure of this report.

Recent lower court decisions have also struck pleadings based upon the destruction of evidence. In McRae v. Lackman Culinary Services, Inc., (236 NYLJ Sup. Ct. Nassau Co., 11/6/06), a motor vehicle accident case in which a pedestrian was hit by a van while crossing an intersection, the court struck defendant’s answer because the defendant had failed to preserve a critical log book which would have helped determine whether its van had been in use on the date of the accident. Even though production of the log book was not requested prior to its destruction, the court held that the defendant was on notice “that the evidence may be needed for future litigation” and that plaintiff was prevented from proving her case with “incisive evidence”.

An aggressive litigant should not accept a defendant’s representation that a critical item of evidence has been lost or simply rely upon an instruction at trial regarding lost evidence. The proof of one’s case may be significantly damaged by the loss of such evidence and, justly, there are severe remedies that may be imposed against the offending party. One is not required to show that they are unable to prove their claim in absence of the evidence, simply that the lost materials potentially rob the litigant of proof by “incisive” evidence. The loss and/or destruction of such valuable evidence, whether in good faith or not, should be met by the appropriate sanction of striking a Defendant’s Answer.

DISTRICT ATTORNEY
QUEENS COUNTY
125-01 QUEENS BOULEVARD
KEW GARDENS, NEW YORK 11415-1568
718-286-6000

Queens District Attorney Richard A. Brown announced today that a former mortgage company employee whose civil lawsuit against the New York City Transit Authority was placed on hold earlier this year after the judge declared a mistrial and referred the matter to the District Attorney’s office for possible prosecution for fraud has, in fact, been charged with submitting false claims to the Transit Authority for which he received more than $16,000 in lost wages following a bus accident. In addition, while being processed prior to his arraignment, it was revealed that the defendant is wanted on a Pennsylvania warrant for an alleged 2004 rape.

District Attorney Brown said, “The defendant is accused of filing a false claim with the New York City Transit Authority for wages he said he lost after being unable to work in the aftermath of a bus accident. Claims like those allegedly filed in this case take money out of the pockets of all New Yorkers. While allegedly stealing from this agency is bad enough, it turns out that a warrant had been issued for the defendant who is wanted for the alleged rape of a minor in Pennsylvania.”

The defendant has been charged with third-degree grand larceny, third-degree insurance fraud, first-degree perjury and first-degree falsifying business records. He was arraigned last night before Queens Criminal Court Judge Suzanne Melendez and ordered held without bail because of his fugitive status. He refused to waive extradition to Pennsylvania. If convicted in the Queens case he faces up to four years in prison.

District Attorney Brown said that, according to the charges, the defendant claimed to have been injured in a bus accident on September 11, 2006, at the intersection of Baisley Avenue and Bedell Boulevard. As a result of the alleged accident, he filed a no-fault insurance claim for lost wages with the New York City Transit Authority. The defendant later testified under oath about the lost wage claim in connection with a lawsuit he filed against the NYCTA. The defendant testified that his earnings were approximately $5,000 a month, and that he had earned $4,000 during the month of July 2006 and $5,000 during the month of August 2006, according to a transcript of the proceeding, while working at Discount Home Mortgage, which is located at One Cross Island Plaza, Rosedale, Queens.

Furthermore, the District Attorney said, a New York motor vehicle no-fault insurance employer’s wage verification request allegedly submitted to the NYCTA by the defendant in support of his lost wage claim indicated that the defendant earned $3,000 a month at Discount Home Mortgage. Investigators from the District Attorney’s Detective Squad, however, spoke to the defendant’s former employer – the president of Discount Home Mortgage – and learned that he never signed the wage verification form and that the defendant did not earn $4,000 during July 2006 and $5,000 during August 2006, but in fact earned $1,100 during that period.

In addition, the District Attorney said, the defendant was fingerprinted following his arrest and as the prints were processed a warrant for the defendant issued in Pennsylvania was revealed indicating that the defendant was charged in Harrisburg, in Dauphin County, on June 14, 2005, for the alleged rape by forcible compulsion of a person under the age of 14 on December 20, 2004.

According to District Attorney Brown, the investigation of the grand larceny case began after it was referred to the District Attorney’s office for investigation by Queens Supreme Court Justice Duane Hart, who was overseeing the civil lawsuit brought by the defendant.

The investigation was conducted by Detective Joseph Brancaccio and Detective Patrick F. Dolan of the District Attorney’s Detective Bureau under the supervision of Sergeant Evelyn Alegre and Lieutenant Robert J. Burke, and the overall supervision of Chief Lawrence J. Festa and Deputy Chief Albert D. Velardi.

It should be noted that a criminal complaint is merely an accusation and that a defendant is presumed innocent until proven guilty. 

The Defendant is being represented my Matthew D. Myers.

An alleged cyber-sicko accused of posing online as a co-ed to trick college women into sending him their nude photos has hired a top forensic shrink to prove he’s just a harmless nerd.

Chubby Hunter College student Elvin Chuang, 20, of Brooklyn, is trying to avoid a possible 16-month prison sentence on charges of identity theft, coercion, fraud and general larceny.

He’s hoping an examination by forensic psychologist N.G. Berill, scheduled for Monday, will convince a Manhattan judge that he isn’t really dangerous and shouldn’t be jailed at all.

Berill has consulted on numerous high-profile criminals, including serial killer Joel Rifkin, LIRR mass murderer Colin Ferguson and Abner Louima torture cop Justin Volpe.

“We’re hoping he’ll find my client is not a predator, but is more or less doing this as a college prank” said his lawyer Matthew Myers.

But Manhattan prosecutors want Chuang sent up the river, noting that he admits he succeeded in tricking and bullying some 50 women into sending him pictures.

Chuang allegedly worked his scheme by going online at the web site facebook.com while assuming the identity of a female friend of the would-be victim.

He’d plead for nudie pictures under the guise of needing them for an art project – then extort still more pictures by threatening to post the first ones online.

Source: New York Post  – Friday, September 15 2006

Attorney for the defense: Matthew D. Myers

Between his cashmere coats, his perfect French accent and his claims of big-bucks dealings with John Travolta and Jodie Foster, Alexis Quinlin was quite the convincing businessman – taking some 22 investors into handing him nearly $4 million over five years.

But every one of these deals was a swindle, Manhattan prosecutors said yesterday, as Quinlin was thrown in jail on grand larceny charges.

Quinlin, 46, of SoHo, claimed that he exported DVD players and flat-screen TVs to Europe at astounding profit but needed money from investors to finance these transactions, prosecutors said.

To throw some extra razzle-dazzle into his sales pitch, he sometimes pretended to be famous French photographer Jean-Baptiste Mondino, prosecutors said.

And to clinch the deals he’d pull out of his briefcase what he claimed were contracts in which no less celebrities than Travolta, Foster and Virgin founder Sir Richard Branson had invested in his deals.

In fact the celebrities were never involved – Quinlin had allegedly forged their signatures.

“He speaks French fluently; he’s a regular at Balthazar; he’s the man about town” said an alleged victim, who asked not to be identified. “Designer clothes, clean cut, always flirting with young girls – he acted like he really knew everything about everything.

“And he would give money back quickly, unexpectedly, so you wouldn’t suspect anything. So you wanted to give even more money” said another alleged victim.

The victims were all acquaintances of his – a personal trainer, a model, a teacher, lawyers and businessmen, prosecutors said.

Quinlin used some of the money to pay off debts from his movie projects, including the distribution of the Oscar-nominated film “The Taste Of Others” (“Le Gout Des Autres”).

He also blew the money on fancy dinners at The Four Seasons, Daniel, and Bouley, prosecutors said.

He’ll be in jail at least three days, as anything he posts toward his $100,000 bail is scrutinized.

Quinlin was caught after one of his alleged victim’s pals spotted him at Coffee Shop in Union Square.

Source: New York Post – Friday May 12, 2006

Attorney for the defense: Matthew D. Myers