FILED: NASSAU COUNTY CLERK 11/16/2018 10:05 AM
`NYSCEF DOC. NO. 39
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`INDEX NO. 605398/2014
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`RECEIVED NYSCEF: 11/16/2018
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`SUPREME COURT - STATE OF NEW YORK
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`PRESENT: HON. JACK L LIBERT,
`Justice.
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`DOREEN RAFFA-ROSLAN, (cid:9)
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`-against- (cid:9)
`ALLSTATE INSURANCE COMPANY, (cid:9)
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`Plaintiff,
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`Defendant.
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`The following papers having been read on this motion:
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`Notice of Motion/Order to Show Cause (cid:9)
`Cross Motion/Answering Affidavits (cid:9)
`Reply Affidavits (cid:9)
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`1
`2
`3
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`TRIAL PART 25
`NASSAU COUNTY
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`MOTION #02
`INDEX ft 605398/14
`MOTION SUBMITTED:
`SEPTEMBER 12, 2018
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`Plaintiff moves to set aside a jury verdict pursuant to CPLR 4404 (a).
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`In this action plaintiff sought enforcement of a contract of insurance in connection with a fire
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`at her residence. The fire occurred after plaintiffs home sustained significant flood damage as a
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`result of superstorm Sandy. Plaintiff did not have flood insurance. Defendant denied coverage for
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`the fire damage on the grounds that the fire was the result of arson committed by plaintiff or on her
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`behalf and that defendant made fraudulent misrepresentations in violation of provisions of the
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`policy. The jury rendered a defendant's verdict on both the arson and fraud defenses. Plaintiff
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`moves to set aside the verdict, proferring three reasons why the verdict should be set aside.
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`First, plaintiff asserts that the defendant "failed to prove that plaintiff had exclusive
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`opportunity to cause the fire" (pg. 8, Friedman affirmation'). Plaintiff cites People v. Mann, 102
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`AD2d 14, 478 N.Y.S 2d 650 (Second Dept. 1988) in support of its position that a finding of civil
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`arson requires proof of "exclusive opportunity." Defendant's argue that "exclusive opportunity"
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`All page references are to Friedman affirmation.
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`FILED: NASSAU COUNTY CLERK 11/16/2018 10:05 AM
`NYSCEF DOC. NO. 39
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`INDEX NO. 605398/2014
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`RECEIVED NYSCEF: 11/16/2018
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`need not be proved citing Maier v. Allstate Ins. Co., 41 AD3d 1098, 838 N.Y.S. 2d 715 (Third
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`Dept., 2007). Maier succinctly sets forth the standard in civil arson cases: "direct proof of arson is
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`seldom available and, therefore, can be established in civil cases by circumstantial evidence."
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`Applying this standard, the Third Department upheld the lower court's finding of civil arson even
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`though plaintiff did not have "exclusive opportunity" (Maier, internal citations omitted). In the case
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`at bar, the jury verdict was supported by direct evidence including the testimony of expert fire
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`investigators and circumstantial evidence including the trial testimony of plaintiff that contradicted
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`her EU0 testimony (concerning the holders of keys and whether she secured the house after leaving
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`it) and plaintiffs financial motive because she did not have flood insurance. The totality of the
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`evidence warranted the jury's finding of arson.
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`Second, plaintiff asserts that "plaintiff was improperly restricted in establishing others who
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`had a motive to commit arson" (pg. 9). This assertion arises out of plaintiff's proffer of evidence
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`that her ex-husband had motive to set the 2012 fire. The evidence plaintiff proposed to submit
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`included prior physical confrontations between the former spouses, violation of protective orders
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`issued during the matrimonial proceedings and statements made by her ex-husband to their infant
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`children. The divorce proceeding commenced in 2003 and concluded in 2007, five years before the
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`fire. The undersigned ruled that alleged prior "bad acts" of the husband were not admissible, were
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`a collateral issue and lacked sufficient probative value to outweigh the potential prejudice. There
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`was no improper restriction on plaintiffs testimony.
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`Third, plaintiff asserts that evidence of financial assistance from "NY Rising and other
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`governmental agencies providing assistance to plaintiff unfairly tainted the jury" (pg. 12). One of
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`the principal fraud defenses was that plaintiff deliberately submitted overstated claims to defendant
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`by reporting as fire damage items which were damaged by flood (which plaintiffs insurance policy
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`did not cover). For example, plaintiff testified that her builder estimated the cost of flood restoration
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`at $200,000. Despite this estimate plaintiff filed a claim for and received the sum of $400,000 from
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`NY Rising. Plaintiffs application to NY Rising contained internal inconsistencies and contradicted
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`information contained in other documents submitted by plaintiff to other government agencies.
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`2 of 3
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`FILED: NASSAU COUNTY CLERK 11/16/2018 10:05 AM
`NYSCEF DOC. NO. 39
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`INDEX NO. 605398/2014
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`RECEIVED NYSCEF: 11/16/2018
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`Although plaintiff offered explanations for these inconsistencies, her direct testimony "opened the
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`door" for defendant to further inquire into this area.
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`The jury verdict was supported by clear and convincing evidence in all respects. The
`challenged trial rulings were made correctly. The motion is denied.
`This constitutes the decision and order of the court.
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`DATED: November 14, 2018
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`4 1 / ENTER
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`40_4
`LIBERT
`S.C.
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`ENTERED
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`NOV 1 6 2018
`NASSAU COUNTY
`COUNTY CLERK'S OFFICE
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`3 of 3
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