SCHOHARIE -- Defense attorneys have renewed a motion to dismiss all charges following a revelation that Mavis Tire may never have performed scheduled brake work on the limousine involved in last year's deadly Schoharie crash that killed 20 people.
In a letter to the defense attorneys for Nauman Hussain this week, Schoharie County District Attorney Susan J. Mallery disclosed that in a Sept. 17 interview, former Mavis Tire manager Virgil Parks said a master brake cylinder was ordered but then not installed on the 2001 Ford Excursion stretch limousine at the time of a May 11, 2018, state vehicle inspection.
"Although the invoice from May 11, 2018, indicates that this part was installed, Mr. Parks informed us that an employee ... told him that the part was not installed," the letter states.
The manager said it was common practice for Mavis to bill for work not performed, and cited two instances when that occurred with the crash limousine. He said he didn’t learn the brake cylinder wasn’t replaced until another employee told him in February 2019, shortly before Parks was terminated by the company.
The disclosure prompted Hussain's defense to send a letter to Schoharie County Court Judge George R. Barlett III on Tuesday, renewing its motion to have the criminal charges against Hussain dismissed.
"Mavis's fraudulent conduct -- not anything undertaken by defendant Nauman Hussain -- was the true legal cause of the accident," defense attorney Joseph Tacopina wrote in the letter.
As the day-to-day operator of Prestige Limousine of Wilton, Hussain, 29, of Wilton, faces 20 charges each of second-degree manslaughter and criminally negligent homicide in connection with the Oct. 6, 2018 crash in Schoharie that claimed the lives of 17 passengers, the driver, and two pedestrians.
The aging vehicle came down a long hill on state Route 30 and passed at high speed through the intersection with state Route 30A, crashing near the parking lot of the Apple Barrel Country Store. Prosecutors say the vehicle suffered a "catastrophic brake failure."
The master brake cylinder is the device that converts pressure the driver applies to the brake pedal into the hydraulic pressure that applies the brakes. The limousine had failed state Department of Transportation commercial vehicle inspections twice in 2018 because of mechanical issues including the condition of its brakes, but was on the road with a Department of Motor Vehicles inspection sticker from Mavis, even though Mavis wasn’t authorized to inspect high-capacity commercial vehicles.
The Excursion had been stretched after manufacturing to carry as many as 18 passengers, which under state law meant DOT should have done the inspections.
The exchange of letters this week are part of the pre-trial motions and disclosures. Hussain is scheduled to go on trial in Schoharie County Court in March.
The existence of the letters was first reported Wednesday by the Times Union, and they were subsequently released to reporters by the County Court.
Mavis, which has previously been named in several civil lawsuits filed by the estates of crash victims based on its having performed the vehicle’s most recent inspections, has denied responsibility for the crash.
Mavis released the following a statement on Wednesday:
“Many of the statements attributed to Mr. Virgil Park, a former Mavis employee, in the October 7 letter, as well as those made by Mr. Nauman Hussain’s criminal defense attorneys in the October 8 letter, are inaccurate or misleading.
“Mavis is committed to providing high quality, safe, affordable services to our customers. Our service and billing policies are honest, fair and sound and we vehemently disagree with any allegations to the contrary. Mr. Hussain and his criminal defense lawyers are attempting to falsely attack Mavis in a desperate diversion tactic to shift responsibility away from Mr. Hussain, where it solely belongs.
“The vehicle in question traveled more than a thousand miles over several months since it was serviced at Mavis. During that time, Mr. Hussain, according to the District Attorney’s Office and the New York State Police, committed serious crimes by, among other things, defying an order to take the vehicle out of service.”
In a Sept. 25 letter filed as part of the pre-trial motions, Mallery sought permission to disclose grand jury minutes that might contain exculpatory material helpful to the defense, as required by law. Parks was interviewed a week prior to that date, but does not appear to have testified before the grand jury, so it isn’t clear if Parks’ statement was covered.
That letter referred to unspecified material from Mavis that might help the defense, but did not provide any details.
In the Oct. 7 letter to the defense, Mallery said the disclosure of Parks’ interview was being made “in an excess of caution,” citing its obligation to disclose any material helpful to the defense.
In addition to saying the master brake cylinder was purchased from Advanced Auto Parts on May 4, 2018, then returned without being installed, Parks said billing for services other than those performed was common at Mavis stores, as a way for them to maintain sales quotas. “In essence, this practice would result in inaccurate information on invoices,” Mallery summarized.
Parks said in his interview that on Jan. 25, 2018, a $79.99 power steering flush on the limousine was billed and not performed, and on on June 8 and June 25, 2018, brake labor and a power steering flush were invoiced. “Mr. Parks informed us that the brake service was not performed,” the summary states.
Parks also said that during the May 11 state inspection, Prestige was invoiced for a “brake flush,” though the brake lines were only bled.
There is already a motion to dismiss the charges for lack of evidence pending before the court, but the new information strengthens that argument, the defense said in its response. “In short, this new information provided by the People further exonerates Mr. Hussain,” Tacopina wrote to the court.
“The defense respectfully maintains that the Indictment must be dismissed in its entirety,” the letter states near its conclusion.
Tacopina goes on to say that if the practice of billing for services not performed was widespread at Mavis, then there is an ongoing threat to the public. “In the event other customers are presently operating vehicles, under the sham illusion that their brakes or other mechanical devices were properly serviced by Mavis, it is incumbent that they be alerted otherwise as soon as possible, so as to avoid any further and needless tragedies from occurring,” he wrote.
The stretch limousine was carrying 17 adults, many of them from the Amsterdam area, to a birthday celebration in Cooperstown at the time of the accident. Emotional events to mark the one-year anniversary of the tragedy were held this past weekend in Schoharie and Amsterdam.
Local federal and state legislators have called for reforms to close inspection loopholes and improve the safety of high-capacity limousines, even as the families of some of those who died have expressed their frustration.
"These new allegations warrant further investigation, negligent actions and everyone who had a part in those actions must be held accountable!," state Assemblyman Angelo Santabarbara, D-Rotterdam, wrote on Twitter.