Plaintiffs, passengers in a Ryder rental truck being operated by defendant Fuller, were injured when the rental truck struck a concrete support beam. This negligence action ensued, with plaintiff Kelly settling during the course of trial. According to Fullers own deposition testimony, which was read to the jury at trial, Fuller panicked when another vehicle veered into her side of the road and made a U-turn. Fuller claimed that she swerved, thinking that the other vehicle was going to hit the truck, but then realized that she had misjudged the distance.

Over objection, the court permitted inquiry into an unrelated accident in which plaintiff Kelly was involved five years earlier, where she had alleged that an unidentified vehicle struck her car, causing her vehicle to swerve into a guardrail. Defendant Ryder argued that since Kelly blamed a phantom driver in the prior accident, evidence thereof was admissible to show that plaintiffs were making up a scenario in the instant case. Although the court noted that plaintiffs theory of liability was exactly the opposite, since they were not placing the blame on a phantom driver, but rather, claiming that Fuller was fully responsible, it permitted the inquiry and allowed defense counsel to argue in summation that the present accident was suspicious.

The trial court found for defendant and dismissed the complaint. The Appellate Term reversed.

The mere fact that Kelly had an accident five years earlier, without more, was insufficient to support an inference of fraud. Notably, there was no claim or showing that the prior accident was staged or otherwise fraudulent. While evidence of a prior similar act is admissible where it tends to establish such factors as motive, intent or a common scheme or plan (Id. at 211), here there was not a sufficient degree of similarity or connection between the two accidents to permit the introduction of such evidence in support of Ryders fraud defense.

Kelly et al. v. Ryder Truck Rental, Inc. et al., 2006 NY Slip Op 52467 (U) (App Term, 1st Dept)