Opinion
23302/2011
02-27-2012
Mantovanny A. Douge, Plaintiff, v. New York Life Insurance Company, Christine Navin, et al., Defendants.
Plaintiff Pro Se For Defendants New York Life Insurance Company and Christine Navin: Lawler Mahon & Rooney, LLP by Christopher S. Rooney, Esq.
Plaintiff Pro Se
For Defendants New York Life Insurance Company and Christine Navin: Lawler Mahon & Rooney, LLP by Christopher S. Rooney, Esq.
Charles J. Markey, J.
Plaintiff alleges that on June 27, 1985 New York Life Insurance Company ("New York Life") issued the subject whole life insurance policy to his father, Jean Claude Riviere, and that plaintiff and his mother, Raymonde A. Riviere, were both named as beneficiaries. Plaintiff states that his mother is deceased, and that, on June 13, 2011, his father created a private trust and donated and bequeathed all his assets to the trust and appointed the plaintiff as the trustee. Plaintiff's father Jean Claude Riviere died on July 5, 2011.
Plaintiff, in a written communication dated July 11, 2011, informed New York Life that Jean Claude Riviere had died on July 5, 2011, and requested that the policy's death benefit of $32,425.49 be paid to him as the "private trustee" of "Djedfre Sen Amun Irrevocable Private Trust."Plaintiff stated that said trust was created on June 13, 2011, and that the agreement was recorded and filed in the Kings County Clerk's office.
New York Life, during the course of its investigation of the plaintiff's claim determined that Raymonde A. Riviere, the wife of Jean Claude Riviere, had died on June 6, 2011. New York Life, in a letter dated July 26, 2011, informed plaintiff that its records indicated that the Djedfre Sen Amun Irrevocable Private Trust was not the named beneficiary on the subject policy, and, absent any legal basis to support his claim, the insurer could not honor his request to pay the death benefit proceeds to said trust.
Plaintiff, in a communication dated August 2, 2011, again demanded that New York Life pay the death benefits proceeds to him as the trustee of the Djedfre Sen Amun Irrevocable Private Trust. Plaintiff did not provide the insurer with any further information regarding the said trust.
On August 19, 2011, Christine Navin ("Navin"), New York Life's Assistant Vice President, Individual Policy Services Department, sent a letter to plaintiff stating that "[a]s we indicated in our letter of July 26, 2011, the Djedfre Sen Amun Irrevocable Private Trust is not the named beneficiary on this policy. In the absence of a legal basis to support your claim, we are unable to honor your request for payment. We would be glad to give further consideration to your claim, if we are provided with objective documentation to support your claim." The insurer stated that it would give plaintiff ten days to provide such objective documentation or that it would proceed in the usual manner.
On October 11, 2011, plaintiff commenced this action to compel defendant New York Life to pay the death benefit of life insurance policy, number 37 978 362, to him in his capacity as the alleged "private trustee" of the "Djedfre Sen Amun Irrevocable Private Trust."
Plaintiff, in the order to show cause dated October 14, 2011, seeks the identical relief sought in the complaint. Although plaintiff sought a temporary restraining order, pursuant to CPLR 6313, in the order to show cause, plaintiff does not seek injunctive relief. The Court declined to grant the request for a temporary restraining order.
In view of the fact that plaintiff moved for the instant relief three days after commencing the action, the within motion is premature, as issue had not been joined and defendant's time in which to answer or otherwise move had not expired.
Defendants New York Life and Navin cross move for an order dismissing the complaint on the grounds of documentary evidence, pursuant to CPLR 3211(a)(1), and the failure to state a cause of action as to defendant Christine Navin.
Where, as here, a defendant moves, pursuant to CPLR 3211(a)(1), to dismiss an action asserting the existence of a defense founded upon documentary evidence, the documentary evidence "must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Trade Source v Westchester Wood Works, Inc., 290 AD2d 437 [2nd Dept. 2002], quoting Teitler v Pollack & Sons, 288 AD2d 302 [2nd Dept. 2001]; see, 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Fontanetta v Doe, 73 AD3d 78 [2nd Dept. 2010]; Allstate Ins. Co. v Raguzin, 12 AD3d 468 [2nd Dept. 2004]; Tougher Indus. v Northern Westchester Joint Water Works, 304 AD2d 822 [2nd Dept. 2003]); Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2nd Dept. 2003]; Vanderminden v Vanderminden, 226 AD2d 1037 [3rd Dept. 1996]; Fernandez v Cigna Prop. & Cas. Ins. Co., 188 AD2d 700, 702 [3rd Dept. 1992]; Minovici v Belkin BV, 34 Misc 3d 1025(A), 2012 WL 19425 [Table], 2012 NY Slip Op. 500001, slip op. at 1 [Sup Ct Dutchess County 2012]).
Affidavits submitted by a defendant in support of the motion, however, do not constitute documentary evidence (Berger v Temple Beth-El of Great Neck, 303 AD2d 346 , supra; see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 20).
In considering a motion to dismiss for failure to state a cause of action (see, CPLR 3211[a][7]), the pleadings must be liberally construed (see, CPLR 3026). The sole criterion in determining the motion to dismiss is whether or not, from the complaint's four corners, factual allegations are discerned that, considered as a whole, manifest any cause of action cognizable at law (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Rochdale Village, Inc. v Zimmerman, 2 AD3d 827 [2nd Dept. 2003]; see also, Bovino v Village of Wappingers Falls, 215 AD2d 619 [2nd Dept. 1995]).
The facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although bare legal conclusions and factual claims that are definitively contradicted by the record are not entitled to any such consideration (see, Morone v Morone, 50 NY2d 481 [1980]; Gertler v Goodgold, 107 AD2d 481 [1st Dept. 1985], aff'd on the opinion below, 66 NY2d 946 [1985]).
When evidentiary material is considered, the criterion is whether or not the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v Ginzburg, 43 NY2d at 275 , supra). This determination entails an inquiry into whether or not a material fact claimed by the pleader is a fact at all and whether a significant dispute exists regarding it (see, Guggenheimer v Ginzburg, 43 NY2d at 275, supra; Gershon v Goldberg, 30 AD3d 372 [2nd Dept. 2006]; Hispanic AIDS Forum v Estate of Bruno, 16 AD3d 294, 295 [1st Dept. 2005]; Sesti v North Bellmore Union Free Sch. Dist., 304 AD2d 551, 551-552 [2nd Dept. 2003]; Mohan v Hollander, 303 AD2d 473, 474 [2nd Dept. 2003]; Doria v Masucci, 230 AD2d 764, 765 [2nd Dept. 1996]; Rattenni v Cerreta, 285 AD2d 636, 637 [2nd Dept. 2001]; Kantrowitz & Goldhamer, P.C. v Geller, 265 AD2d 529 [2nd Dept. 1999]; Mayer v Sanders, 264 AD2d 827, 828 [2nd Dept. 1999]; Sotomayor v Kaufman, Malchman, Kirby & Squire, LLP, 252 AD2d 554 [2nd Dept. 1998]; Kevin Kerveng Tung, P.C. v JP Morgan Chase & Co., 34 Misc 3d 1209(A), 2011 WL 6989895, 2011 NY Slip Op 52461(U) [Sup Ct Queens County 2011] [Grays, J.]).
The parties have submitted copies of the whole life policy, number 37 978 362, dated June 27, 2005, issued by New York Life to the insured, Juan Claude Riviere. Said policy listed Raymonde A. Riviere, the wife of the insured, as the first beneficiary, and Mantovany Lamartine Douge, the son of the insured, as the second beneficiary. The plaintiff is named in the summons and all other documents as Mantovanny A. Douge.
In June 1988, the insured executed and submitted a name change request to New York Life, requesting that his name on the policy be changed from Juan Claude Riviere to Jean Claude Riviere.
The subject insurance policy defines the words "you" and "your" as the owner of the policy. Said policy provides that the policy's owner "can change the owner of this policy from yourself to a new owner, in a notice you sign which gives us the facts that we need. When this change takes effect, all rights of ownership in this policy will pass to the new owner. When we record a change of owner or successor owner, these changes will take effect as of the date you signed the notice, subject to any payment we made or action we took before recording these changes. We may require that these changes be endorsed in the policy. Changing the owner or naming a new successor owner cancels any prior choice of successor owner, but does not change the beneficiary."
The policy further provides that, "[w]hile the insured is living you [the owner] can change a beneficiary in a notice you sign which gives us the facts we need. When we record a change, it will take effect as of the date you signed the notice subject to any payment we made or action we took before recording the change."
The policy also states: "Death of Beneficiary. If no beneficiary for the life insurance proceeds or for a state share, survives the Insured, the right to those proceeds or this share will pass to you. If you are the insured, this right will pass to your estate. If any beneficiary dies at the same time as the Insured, or within 15 days after the Insured but before we receive proof of the Insured's death, we will pay the proceeds as though that beneficiary died first."
In September 2010, Jean Claude Riviere, the owner and insured, executed and submitted a change of beneficiary request to New York Life, which designated his wife, Raymonde A. Riviere, as the sole beneficiary. New York Life, in a letter dated September 17, 2010, advised the insured that his request to change the beneficiary had been received and was recorded, effective August 13, 2010. Therefore, after August 13, 2010, Mantovany Lamartine Douge was no longer a named beneficiary under the subject insurance policy. A specimen whole life insurance policy, number 37 978 362, has been submitted by the defendants which names Jean Claude Riviere as the insured, and "RAYMOND [sic] A. RIVIERE, WIFE OF INSURED" as the first and sole beneficiary.
Plaintiff relies solely on the original designation of beneficiaries when the policy was issued in 1985. He does not allege that Jean Claude Riviere gave the insurer written notice of a change of beneficiary following the creation of the alleged trust.
Plaintiff claims that, prior to his death, his father Jean Claude Riviere transferred ownership of the subject policy to the Djedfre Sen Amun Irrevocable Private Trust. Plaintiff, however, does not allege that Jean Claude Riviere executed and submitted to the insurer any document which notified the insurer of a transfer of ownership to the trust.
Plaintiff, prior to commencing this action, failed to provide the insurer with a copy of the alleged trust instrument and other documentary evidence which would demonstrate that Jean Claude Riviere had transferred ownership of the subject policy to the trust. Plaintiff, in opposition to the cross motion, merely repeats his allegations, and has not demonstrated that Jean Claude Riviere effectuated a change in ownership in the insurance policy prior to his death.
Defendants' documentary evidence also demonstrates that administrators of the Estate of Jean Claude Riviere submitted a claim to New York Life, dated October 1, 2011, and that counsel for the estate submitted further documentary evidence in support of the estate's claim to the insurer on November 10, 2011.
The Court, upon the foregoing papers, finds that the documentary evidence submitted herein conclusively establishes that: Jean Claude Riviere was the owner of the policy and its insured at the time of his death, the policy's sole beneficiary Raymonde A. Riviere predeceased the insured, and, pursuant to the policy's terms, the proceeds are payable to the Estate of Jean Claude Riviere. Therefore, the documentary evidence submitted herein resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim against New York Life.
The Court further finds that plaintiff's complaint fails to state a cause of action against defendant Christine Navin. An agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute or superadd his or her personal liability for, or to, that of the principal (Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 4 [1964]; Performance Comercial Importadora E Exportadora Ltda v Sewa Intl. Fashions Pvt. Ltd., 79 AD3d 673 [1st Dept. 2010]; Koeningsberger v Fifth Ave. Owner, LLC, 2011 WL 6891322, 2011 NY Slip Op 33381(U) [Sup Ct New York County 2011] [Braun, J.]). Plaintiff's allegations against Navin are based solely upon her letter of August 19, 2011, in which she clearly disclosed that she was acting on behalf of her employer, New York Life.
Finally, the Court notes that plaintiff's documentary evidence includes a Department of State UCC filing report indicating that a UCC filing statement was filed against New York Life by the plaintiff or the alleged trust on July 10, 2011. Since the filing is not genuine, New York Life may take all necessary steps to void said filing.
In view of the foregoing, plaintiff's motion to compel defendants' to turn over the death benefit proceeds of the life insurance policy is denied, and defendants' cross motion to dismiss the complaint, in its entirety, is granted. The complaint is dismissed.
The foregoing constitutes the decision, opinion, and order of the Court.
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J.S.C.
Dated: February 27, 2012