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 20th day of September , 2024.

P R E S E N T:

Hon. Wayne P. Saitta, Justice.

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ARSALAN AHMED,

Plaintiff, Index No. 518903/2020

-againstDECISION 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 Numbers

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

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ISSA HAMDAN,

Plaintiff, Index No. 519366/2020

-againstDECISION AND ORDER

DENIS ZAGLADKO, LIBERTY COCA-COLA BEVERAGES, MS #3, #4, & #5

LLC, ARSALAN AHMED, and TARIQ MAHMOOD

Defendants,

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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 these motions:

NYSCEF Doc Numbers

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

These actions 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 Defendant LIBERTY COCA-COLA BEVERAGES LLC 

(Defendant LIBERTY COCA-COLA) and driven by Defendant DENIS ZAGLADKO. 

Plaintiff ISSA HAMDAN was a passenger in Plaintiff 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 an 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 answers 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 the lawsuits are based on a staged accident in which Plaintiffs 

knowingly asserted claims of injury that bore no causal relation to the accident, forcing 

Defendants to expend considerable sums to investigate and defend against.

Plaintiffs argue 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) there 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

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

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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 true; it must also establish that it was justified in taking action 

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

675 [2d Dept 1993]; see also Braddock v Braddock 60 AD3d 84 [1st 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]). Moving 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”.

Moving Defendants contend that they relied on Plaintiffs and co-Defendants’ 

misrepresentations by expending significant sums to defend the actions brought against 

them. Specifically, that they 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 (see 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

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

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Here, the expenses in defending the actions were incurred because Moving 

Defendants did not accept Plaintiffs allegations as true, but instead contested them.

Both sides 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 Ottoni, the Court allowed a 

counterclaim for fraud in a personal injury action where the allegations in Plaintiff’s 

complaint were wildly different from her deposition, medical records, or any witness 

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 hospital records, the 

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

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

justifiable reliance on the plaintiff’s allegations (id.).

By reason of the foregoing, the Moving Defendants’ motions to amend must be 

denied.

As Moving Defendants’ motions are being denied, the cross-motions to compel 

Defendants to provide the results of their investigation, in the event that the motions to 

amend 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 answer, 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 Decision 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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