Ahmed v Coca-Cola Co. 2024 NY Slip Op 33310(U) September 20, 2024 Supreme Court, Kings County
Docket Number: Index No. 518903/2020 Judge: Wayne P. Saitta 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.At an IAS Term, Part 29 of the Supreme Court of the State of New York, held in and for the County of Kings, at 360 Adams Street, Brooklyn, New York, on the 20 th day of September , 2024.
P R E S E N T: Hon. Wayne P. Sa itta, Justice.

--------------------------------------------------------------------- X ARSALAN AHMED
, Plaintiff, Index No. 518903/2020

- against

DECISION AND ORDER THE COCA

- COLA COMPANY, LIBERTY COCA

- COLA MS #4 BEVERAGES LLC and DENIS ZAGLADKO,

Defendants,

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The following papers numbered on this motion : NYSCEF Doc Number s Notice of Motion/Order to Show Cause / Petition/Cross Motion and Affidavits (Affirmations) Annexed 56

- 57, 83 Answering Affidavit (Affirmation) 66, 85 Reply Affidavit (Affirmation) 73, 87

- 88 Supplemental Affidavit (Affirmation) Pleadings

– Exhibits 58

- 61, 84 Stipulations

– Minutes Filed Papers

--------------------------------------------------------------------- X I SSA HAMDAN
, Plaintiff, Index No. 519366/2020

- against

DECISION AND ORDER DENIS ZAGLADKO
, LIBERTY COCA

- COLA BEVERAGES
, MS #3, #4, & #5 LLC , ARSALAN AHMED, and TARIQ MAHMOOD

Defendants,

--------------------------------------------------------------------- X 

### FILED: KINGS COUNTY CLERK 09/20/2024 02:29 PM INDEX NO. 518903/2020

NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 09/20/2024

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The following papers numbered on th ese motion s : NYSCEF Doc Number s Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 72

- 73 , 102 , 79

- 80 , 87

- 88 Answering Affidavit (Affirmation) 104 , 94 , 98 Reply Affidavit (Affirmation) 90 , 108

- 109 Supplemental Affidavit (Affirmation) Pleadings

– Exhibits 74

- 77, 91

- 93 , 103, 105

- 107 , 81

- 82, 95

- 97 Stipulations

– Minutes Filed Papers

Th ese action s involve the same two

- vehicle accident. Each Plaintiff has filed their

own separate action.

Plaintiff ARSALAN AHMED was the driver of the vehicle that was involved in an

accident with a truck owned by D efendant LIBERTY COCA

- COLA BEVERAGES LLC

(Defendant LIBERTY COCA

- COLA ) and driven by D efendant D ENIS Z AGLADKO

.
Plaintiff I SSA HAMDAN was a passenger in P laintiff ARSALAN AHMED’s vehicle

.
Defendants THE COCA

- COLA COMPANY, LIBERTY COCA

- COLA
, and DENIS

ZAGLADKO move to amend their answer in action 518903/2020
, and Defendants

LIBERTY COCA

- COLA and DENIS ZAGLADKO move to amend their answer in action

519366/2020 . Both motions to amend seek leave to allege a n affirmative defense and

counterclaim for fraud.

HAMDAN , AHMED, and MAHMOOD cross

- move to compel Defendants

LIBERTY COCA

- COLA and DENIS ZAGLADKO to produce the entirety of any

investigation performed as to fraud in the event that Defendants ’ motions to amend are
granted.

Moving Defendants move for leave to amend their answer s to assert an affirmative

defense and a counterclaim for common law fraud against each Plaintiff

. 

### FILED: KINGS COUNTY CLERK 09/20/2024 02:29 PM INDEX NO. 518903/2020

NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 09/20/2024

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Moving Defendants argue that evidence obtained during discovery and through

investigation revealed that th e lawsuits are based on a staged accident in which Plaintiff s
knowingly asserted claims of injury that bore no causal relation to the acc ident
, forcing

Defendants to expend considerable sums to investigate and defend against

.
Plaintiff s argu e that Moving Defendants have not established the elements

necessary to support a fraud claim and that fraud is not a proper counterclaim in a

personal injury negligence action to recover damages.

“ In the absence of prejudice or surprise to the opposing party, leave to amend a

pleading should be freely granted unless the proposed amendment is palpably insufficient

or patently devoid of merit ” ( Marcum, LLP v. Silva , 117 AD3d 917, 917 [2d Dept

2014] ). “ The determination to permit or deny amendment is committed to the sound

discretion of the trial court ” ( id. ).

Here, Defendants have failed to adequately plead the required element of

justifiable reliance

. ‘“[T]o state a counterclaim or affirmative defense sounding in fraud , a defendant

must allege that (1) the plaintiff made a representation or a material omission of fact

which was false and the plaintiff knew to be false, (2) the misrepresentation was made for

the purpose of inducing the defendant to rely upon it, (3) ther e was justifiable reliance on
the misrepresentation or material omission, and (4) injury’” ( Emigrant Mortgage

Company v. Public Administrator of Kings County , 207 AD3d 437, 441 [2d Dept 2022],

quoting Shah v. Mitra, 171 AD3d 971, 975 [2d Dept 2019]).

“’[ T ] o plead a claim for fraud in the inducement or fraudulent concealment,

plaintiff must allege facts to support the claim that it justifiably relied on the alleged

misrepresentations ’ ” (

Ambac Assur. Corp v

. Countrywide Home Loans Inc., 31 NY3d 569 

### FILED: KINGS COUNTY CLERK 09/20/2024 02:29 PM INDEX NO. 518903/2020

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[2018]
, quoting ACA Fin. Guar. Corp. v

. Goldman, Sachs & Co.
, 25 NY3d 1043, 1044
[2015] ; Louis Seafood Rest LLC v Brown, 199 AD3d 790 [2d Dept 2021] ).

“ In order to establish a cause of action to recover damages for fraud based upon

misrepresentation, a party must not only establish that it reasonably believed that the

representation made was t rue; i t must also establish that i t w a s justified in taking action

in reliance upon that representation ” ( Logalbo v. Plishkin, Rubano & Baum, 197 AD2d

675 [2d Dept 1993] ; see also Braddock v Br addock 60 AD3d 84 [1 st Dept 2009] )

. While their Amended Answer may set out a allegation that Plaintiff had an intent

to deceive by allegedly staging the accident, the Moving Defendants do not set forth facts

showing that they believed Plaintiffs ’ allegedly false statements ( see Dos v

. Scelsa &

Villacara
, 200 AD2d 705, [ 2d Dept 1994] ; Tag Mechanical Systems, Inc. v. V.I.P.

Structures, Inc. , 63 AD3d 1504 [4th Dept 2009 ] ). Movi ng Defendants state that “ the fraud

allegation is based on evidence obtained during discovery and through investigation that

revealed that this lawsuit arises from a staged accident that was planned, and in which

plaintiff knowingly asserted claims of injury that bore no causal relation to the accident ”.

M oving D efendants contend that they relied on P laintiffs and co

- D efendants’

misrepresentations by expending significant sums to defend the actions brought against

them. Specifically, that t hey have been forced to make monetary payments to hire legal

counsel, experts, and investigators.

However, the element of justifiable reliance requires that the party take some

action because they reasonably believed the fraudulent statements to be true ( s ee Logalbo

v. Plishkin, Rubano & Baum, 197 AD2d 675 [2d Dept 1993]; Verschell v. Pike
, 85 AD2d

690 [2d Dept 1981]; Lanzi v. Brooks, 54 AD2d 1057 [3d Dept 1976], affd. 43 NY2d 778

[1977] )

. 

### FILED: KINGS COUNTY CLERK 09/20/2024 02:29 PM INDEX NO. 518903/2020

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Here, the expenses in defending the action s were incurred because Moving

Defendants did not accept P laintiffs allegations as true
, but instead contest ed them.

Both side s cited to the decision in Ottoni v. Seatreak, LLC , 2020 NY Slip OP

33282(U) [Sup Ct, NY County 2020]). However , that case offers little guidance in

determining what constitutes justifiable reliance. In Ott o ni
, the Court allowed a
counterclaim for fraud in a personal injury action where the allegations in Plaintiff’s

complaint were wildly different from h er deposition, medical records, or any wi tness
testimony

.

However , the court in Ottoni
, noted that reliance by the party claiming to have been

defrauded is a necessary element of a claim for fraud. Although, the court cited
discrepancies between the plaintiff’s deposition testimony and the hos pital records
, t he

decision is silent as what factual allegations support ed the element of justifiable reliance.

The decision did not hold that defending a lawsuit based on a fraudulent claim constituted

justifiable reliance on the p laintiff’s allegations ( i d

. ).

By reason of the foregoing
, the M o v i n g Defendants ’ motion s to amend must be

denied.

As M oving Defendants ’ motion s are being denied, the cross

- motion s to compel

Defendants to pr ov ide the results of their investigation
, in the event that the motions to

am end were granted must also be denied as moot

. 

### WHEREFORE, it is hereby ORDERED that Defendants THE COCA

- COLA

COMPANY, LIBERTY , and DENIS ZAGLADKO’s motion to amend their answer, motion

sequence #4 in action 518903/2020
, is denied; and it is further
, 

### FILED: KINGS COUNTY CLERK 09/20/2024 02:29 PM INDEX NO. 518903/2020

NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 09/20/2024

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ORDERED, that Defendants LIBERTY COCA

- COLA BEVERAGES LLC and

DENIS ZAGLADKO ’s motion to amend their answ er, motion sequence #3 in action

519366/2020
, is denied; and it is further
, ORDERED, that Plaintiff ISSA HAMDEN’s cross

- motion to compel Defendants

LIBERTY COCA

- COLA BEVERAGES LLC and DENIS ZAGLADKO , motion sequence #4

in action 519366/2020, is denied; and it is further
,

ORDERED , that co

- Defendants ARSALAN AHMED and TARIQ MAHMOOD’s

cross

- motion to compel Defendants LIBERTY COCA

- COLA BEVERAGES LLC and

DENIS ZAGLADKO , motion sequence #5 in action 519366/2020, is denied.

This constitutes the Decisi on and Order of this Court.

E N T E R:

JSC 

### FILED: KINGS COUNTY CLERK 09/20/2024 02:29 PM INDEX NO. 518903/2020

NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 09/20/2024

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