A Pro Se Defendant Wastes the Time of the Trial Court
Travco Insurance Company sued in its capacity as subrogee of its insured, Eric Victor, seeking to recover for damages to Victor’s property by a fire allegedly caused by the negligence of his next-door neighbors, defendants Sally and Ira Dinerman. Ms. Dinerman, acting in pro se, filed at least 17 submissions, some of which request that this action be dismissed and that she be awarded sanctions and attorney’s fees.
In Travco Insurance Company as subrogee of Eric Victor v. Sally Dinerman and Ira Dinerman, 16-CV-1064 (RRM) (RER), United States District Court Eastern District Of New York (May 20, 2020) found itself required to deal with odd actions from a pro se defendant.
Both defendants in this action were initially represented by counsel. Ms. Dinerman was represented by Michael Konopka & Associates, P.C. (“Konopka”), who represented her not only in this action but also on her appeal from a state-court decision: Otsego Mut. Fire Ins. Co. v Dinerman, No. 158600/2016, 2017 WL 1534392 (N.Y. Sup. Ct. Apr. 20, 2017) (“Otsego“). In that decision, Justice Engoren determined that Ms. Dinerman had violated the “Misrepresentation, Concealment or Fraud” condition of the insurance policy covering her fire-damaged home, rendering said policy void in its entirety as to Ms. Dinerman and relieving the insurer of its obligation to defend or indemnify her. Justice Engoren held that Ms. Dinerman had defrauded her insurance company by continuing to seek reimbursement for rental expenses for several months beginning in mid-September 2014, despite having returned to premises that she herself owned.
COUNSEL WITHDRAWS WITH PERMISSION OF COURT
On June 21, 2018, approximately seven weeks after the Appellate Division affirmed the Supreme Court’s ruling in Otsego, Konopka successfully moved to withdraw as counsel. Since then, Ms. Dinerman has filed at least 19 submissions with the Court. Almost all of these submissions enclosed one or more partially legible, handwritten, one-page notes signed by Ms. Dinerman alone.
PRO SE SUBMISSIONS
The submissions from Ms. Dinerman, acting as her own lawyer, did not merit detailed discussion. Four address mundane procedural issues. Six others pertain to, or complain about, other actions or matters unrelated to this case. The remaining eight submissions include a request that the Court dismiss this case and award sanctions and attorney’s fees to Ms. Dinerman. Four of these do not suggest any basis for dismissal. One is a Consolidated Edison bill on which Ms. Dinerman has written: “Please dismiss this case with sanctions and damages ASAP. I am not guilty and should be made whole forthwith.” Another is a note apologizing to Judge Reyes for being late to a conference, which ends with an incongruous request that “the case be dismissed with sanctions, legal fee forthwith.”
In contrast to the foregoing, Document No. 94 arguably sets forth a basis for dismissal. Ms. Dinerman alleges that a settlement conference scheduled for March 28, 2019, was postponed without consulting or notifying her. Claiming that this “was done [e]x parte,” Ms. Dinerman requests that the Court dismiss the case against her as a sanction for violating her legal rights and privileges. In the second note, dated April 5, 2019, Ms. Dinerman asserts that her husband and his former attorney, Mr. Berfond, “had an audience with the Court” and that “Mr. Berfond told Ira not to tell [her].” Ms. Dinerman requests dismissal of the case against her as a sanction for violating her legal rights and privileges.
The judge concluded that neither letter suggests a basis for sanctions of any sort, much less dismissal of the case. The misconduct alleged in the second note was allegedly perpetrated by her husband and his attorney – not by plaintiff or plaintiff’s counsel – and cannot serve as a basis for dismissing plaintiff’s case.
Document Nos. 103, 104, and 107 all contain arguments and evidence that might be used upon a motion for summary judgment. According to Ms. Dinerman, this evidence establishes that she “did everything [she] was asked to do,” and that the cause of the fire was not foreseeable.
Ms. Dinerman’s submissions in support of, or in opposition to, summary judgment were also premature. Summary judgment is no longer premature, however. The Court advised the parties that it is now prepared to entertain dispositive motions.
To the extent any submissions filed by Ms. Dinerman since she elected to proceed pro se in July 2018 can be construed as either a motion to dismiss or a motion for summary judgment, those motions were, obviously, denied.
Plaintiff was given 15 days to file a pre-motion conference request seeking permission to move for summary judgment. Defendants shall have 7 days from their receipt of that pre-motion conference request, if any, in which to respond and to inform the court whether they wish to cross-move for summary judgment.
The insurance company, with a great chance of a favorable verdict in its subrogation action considering the defendants’ guilty verdict in their own claim for fire insurance proceeds, must be frustrated, as was the court, by the actions of the pro se defendant. The motion, when filed, will probably be granted since the court has requested it be filed. The actions of Ms. Dinerman, was given due consideration from the court regardless of its ridiculousness and should have resulted in major sanctions against Dinerman. Even after getting a judgment the subrogating insurer will then need to collect from the defendants who have already lost the right to a defense or indemnity from their insurer by presenting a fraudulent claim. I imagine the court is sorry it allowed her lawyer to withdraw.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves 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 handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts
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