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Proposal to stop prosecution or discovery not available to avoid criminal prosecution



When a defendant deceives an insurer and in a negligent manner allows an employee to die at work has no relation to the claim of property owners who sued for damages

Rebecca Chi Wai Lam, Xue Ming Pan, Cui Mei Li, Hua Hui Lin and Kit Lai Lin Chee v. 993 60th Street Realty Inc., Xin Long Dai, Ground to Sky City Builders Corp., SM TAM Architect, PLLC, WSC Group LLC, “John and Jane Does 1-10” and XYZ Corporations 1-10 ”, 2020 NY Slip Op 51144 (U), 514453/2018, Supreme Court, Kings County (5 October 2020) property owners sued builders who damaged their property. Since an employee of the builders died and they committed a wide range of crimes in addition to damaging the complainants' property, they sought an order that remains trial and discovery because they intended to assert their fifth right of amendment to remain silent.

FACTS [1
9659004] The defendants claim that the principals of each unit, like the WSC itself, were accused by a grand jury as empanel at the request of the Kings County District Attorney & # 39 ;s Office on November 15, 2019. They claimed that two men are the the only persons with knowledge of facts and circumstances that can be presented for a deposit or to testify at the trial, and that each of them intends to invoke their fifth right of amendment against self-incrimination at both the deposit and at the trial against this document.

This is an action brought by persons who own three adjoining dwellings for damage to their homes as a result of excavation work allegedly carried out by movements of the defendant's property owners for the project at the back of the plaintiff's home, on the other side of the block. A worker was killed when a wall collapsed on top of him.

A motion to stay in a civil action pending a related criminal action is directed to the trial court. A convincing factor is a situation in which a defendant invokes his constitutional right to self-incrimination. The constitutions of the United States or of the State of New York do not prevent the court from exercising its discretion in civil proceedings until a related criminal dispute has been resolved.

ANALYSIS

Households are not rich. Their homeowners' insurance refused to pay their debts. They want the damage to their homes repaired, and they claim they would be harmed if they had to wait until the criminal proceedings are over, especially since the state is in the midst of the Covid-19 pandemic and jury trials are overdue. [19659005] There are nine criminal defendants who were charged. The proposal is denied with respect to GTS, as there is no ongoing criminal proceedings against it or its principals or employees. for WSC) were charged with crimes, but not all were charged with each of the crimes, which included but were not limited to: Second degree manslaughter; Criminal negligent murder; Third degree insurance fraud; and a panoply of other crimes.

The "victims" of the crimes accused in the indictment are not the plaintiffs.

The only crime that can be said to "overlap" with this measure, where one of the Plaintiffs is the alleged victim, is the sixth bill, for criminal misconduct (a misdemeanor). Lin is one of the five complainants in this action. Criminal charges are usually charged with crimes such as "hitting" the car of a former friend, throwing a brick through a window, etc. It is not usually used for construction work.

Although there are several allegations of offering a false filing instrument for the Bay Ridge project, they are not directly related to this trial. These allegations relate to the submission of false correction certificates after infringements have been issued, and concern the safety of workers, such as incorrectly certifying that there was a firefighter, a building inspector present, proper fencing and protective persons and property in the workplace.

The Court of First Instance concludes that the bill applies only to (one of) the plaintiff's criminal accident and the offense of "overlapping" for the remainder of this action

The main reason for this is that the Complainant's claim here does not require guardians to testify. The only defendants left here are the property owner, who did not submit any papers in connection with this movement, and the movements. The owner may be liable for damages, but WSC is the only defendant who carried out the excavation work at the site mentioned in the caption.

The term "careless" used in this definition has its own special meaning in our law. A person damages EVENT property to another in an amount exceeding two hundred and fifty dollars when the person does so by performing conduct that creates or contributes to a significant and unjustified risk of such damage occurring, and when he or she is aware of and aware of disregards that risk, and when the risk is of such a nature and degree to disregard it constitutes a gross deviation from the standard of conduct which a reasonable person would observe in the situation.

A stay would thus cause inconvenience and delays to the plaintiffs, the failure to grant the stay would not lead to the defendant WSC suffering the serious benefit of being deprived of a defense. This is because there is no defense against the liability part of the plaintiff's claim, except that, for example, an incorrect defendant was named, because the defendant did not do the excavation work.

Since an earlier decision in the criminal proceedings. would have no security effect in this measure and would not simplify the issues to be proved at trial.

ZALMA OPINION

The Fifth Amendment to the US Constitution protects a person from being forced to prosecute a crime. It is not an unlimited right. This does not apply to facts that have nothing to do with the crimes for which he was charged. Since the plaintiffs are only suing for damage to their property, not the conduct that resulted in the criminal charges, including murder and insurance fraud, the proposal was properly denied.


© 2020 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims handling, cheating and insurance fraudsters almost equally for insurers and insurers . He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

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