1st Dept. Affirms Fraud-Based Defense Amendment in PI Case

Rivkin Radler’s General Liability Defense Team successfully represented The Trustees of Columbia University in the City of New York (Columbia) in a personal injury action in which the plaintiff alleged that she tripped and fell on a defective portion of Columbia’s sidewalk, sustaining multiple injuries and requiring cervical spine fusion surgery.

Following a detailed investigation, the team uncovered that the plaintiff’s daughter had filed a similar lawsuit for a trip-and-fall incident just 20 days earlier, was represented by the same attorneys, and alleged similar injuries.

When questioned at her deposition, the plaintiff denied any knowledge of her daughter’s accident, despite acknowledging that they have a close relationship. Other concerns were that the plaintiff denied any complaints to the cervical spine area immediately after the alleged accident, and her surgeon was profiled in the media for performing unnecessary procedures on personal injury claimants.

These circumstances were highly suggestive of fraud, and a motion was filed to amend Columbia’s answer to assert affirmative defenses that (1) the plaintiff’s alleged injuries resulted from her knowing and intentional participation in a fraudulent scheme; (2) her claims were barred as a staged accident; (3) the action was frivolous; and (4) the lawsuit constituted a fraud upon the court warranting dismissal.

The lower court granted the motion and in a strongly worded decision, the Appellate Division, First Department, unanimously affirmed, finding that “Columbia demonstrated that plaintiff willfully engaged in deceitful and obstructionist conduct designed to undermine the integrity of this proceeding by attempting to provide false and misleading testimony regarding her alleged injuries and how she sustained them.”

The Rivkin team consisted of Brian Schlosser, Daniel Furshpan, Jacqueline Bushwack, Cheryl Korman, Victoria Lavin, and Anthony Hawkins.

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