Swoop & Squat Fails

Posted on July 16, 2026 by Barry Zalma

The Only Solution to Fraud is to Take the Profit Out of the Crime
It Takes Courage to Fight the Fraudster

Post number 5395

In Vivian Maritza Triana Marin, Sebastian Arroyave Penagos, and Daniel Arroyave Penagos v. Marc J. Paynter and Transport Marc Paynter Inc., No. 23-CV-6498, United States District Court, E.D. New York (July 10, 2026) Plaintiffs sued Defendants in diversity after a rear-end collision on the Whitestone Expressway in Queens, New York. Plaintiffs were in a Subaru driven by Vivian Maritza Triana Marin, while Defendant Marc J. Paynter drove a Transport Marc Paynter Inc. tractor-trailer.

Facts:

Dashcam footage from Defendants’ vehicle showed Plaintiffs’ vehicle braking suddenly in the left lane despite an open roadway ahead. Marin could not identify a specific reason for braking, the passenger plaintiffs did not know why she braked, and a non-party witness testified that Plaintiffs’ vehicle stopped abruptly for no apparent reason.

The Accident occurred when Defendants’ vehicle contacted the rear bumper of Plaintiffs’ vehicle. Marin testified that she was traveling at the posted speed limit of fifty-five miles per hour prior to the Accident, and that she decelerated by removing her foot from the accelerator prior to impact. Plaintiffs allege that Defendants’ vehicle was “overtaking cars on the right while remaining in the left lane. Defendants acknowledge that Defendants’ vehicle was in the left lane but contend that the Video shows that other vehicles were passing Defendants’ vehicle on the right.

On March 21, 2024, Plaintiffs’ no-fault insurance carrier, LM General Insurance Company, also known as “Liberty Mutual,” filed an action in the Supreme Court of the State of New York, Nassau County, against Plaintiffs and Plaintiffs’ healthcare providers, seeking a declaratory judgment that the Accident was “not the product of a covered event as it was the product of staged and/or intentional event,” which was “perpetrated by [Plaintiffs] with the intent to obtain insurance benefits that [Plaintiffs] would not otherwise be entitled to receive.”

The prior no-fault litigation and arbitration proceedings involved allegations that the accident was staged, even though Plaintiffs were discontinued from the state action without prejudice and were not parties to the arbitrations.

LAW:

Summary judgment is proper where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Reliable video evidence may control over a party’s contrary version of events when the recording blatantly contradicts that version. For fraud under New York law, Defendants had to establish material misrepresentation or omission, knowledge of falsity, intent to induce reliance, justifiable reliance, and damages by clear and convincing evidence.

DISCUSSION:

The court found the dashcam video dispositive on liability.

It showed Defendants’ tractor-trailer maintaining a steady and safe distance for approximately thirty-five seconds before Plaintiffs’ vehicle suddenly braked with no vehicle, obstruction, pothole, construction, or other hazard ahead.

Plaintiffs’ explanations were speculative, while the video and witness testimony supported Defendants’ position that the unexplained stop caused the accident. The court rejected Plaintiffs’ arguments that Defendants failed to maintain a safe distance or improperly used the left lane, finding no causal violation sufficient to impose liability on Defendants.

ANALYSIS:

Because the undisputed video evidence eliminated any reasonable inference that Defendants caused the collision, the court held that Plaintiffs’ vehicle was the sole proximate cause of the accident.

Liability was resolved in Defendants’ favor and made it unnecessary to address Defendants’ alternative argument that Plaintiffs failed to satisfy New York’s serious-injury threshold. However, the fraud counterclaim survived because the prior state action and no-fault arbitration decisions had no preclusive effect against Plaintiffs, and Defendants did not adequately establish each fraud element on summary judgment.

CONCLUSION:

Plaintiffs’ motion for summary judgment on liability was denied. Defendants’ motion for summary judgment on liability was granted.

Defendants’ motion for summary judgment on the fraud counterclaim was denied, leaving that counterclaim for trial.

ZALMA OPINION

The swoop and squat is a type of insurance fraud where the driver of the fraudster’s car stops suddenly in front of an 18 Wheeler assuming it is insured and then making fake bodily injury claims. Plaintiffs sued Defendants in diversity after a rear-end collision on the Whitestone Expressway in Queens, New York. Plaintiffs attempted fraud by stopping in the middle of a highway in front of Marc J. Paynter’stractor-trailer. He fought and counterclaimed for damages. The trial will decide if Paynter can prove the fraud and get damages from the criminals.

(c) 2026 Barry Zalma & ClaimSchool, Inc.

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