John O'Kelly, Esq., East Williston, for Plaintiff. Bob Mancuso, Esq., Stephen Harris, Esq., Drinker Biddle & Reath, LLP, New York, for Genworth Defendants. Jennifer L. Silvestro, Esq., Lazer Aptheker Rosella & Yedidi, P.C ., Melville, for Defendant Capital One, N.A.
John O'Kelly, Esq., East Williston, for Plaintiff.
Bob Mancuso, Esq., Stephen Harris, Esq., Drinker Biddle & Reath, LLP, New York, for Genworth Defendants.
Jennifer L. Silvestro, Esq., Lazer Aptheker Rosella & Yedidi, P.C ., Melville, for Defendant Capital One, N.A.
JULIANNE T. CAPETOLA, J.
The following papers were read on these Motions:
Defendant Capital One, N.A.'s Notice of Motion and Supporting Documents and Memorandum of Law (Motion Sequence 009)
Defendants Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York's Notice of Motion and Supporting Documents and Memorandum of Law (Motion Sequence 010)
Plaintiff's Notice of Motion and Supporting Documents (Motion Sequence 011)
Plaintiff's Notice of Cross–Motion and Supporting Documents (Motion Sequence 012)
Plaintiff's Affirmation in Opposition (Motion Sequence 009)
Defendant Capital One, N.A.'s Affirmation in Opposition and Reply (Motion Sequence 009, 012)
Plaintiff's Reply Affirmation (Motion Sequence 009, 012)
Plaintiff's Affirmation in Opposition (Motion Sequence 010)
Defendants Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York's Reply Affirmation (Motion Sequence 010)
Plaintiff's Reply Affirmation (Motion Sequence 010, 011)
Defendant Capital One, N.A.'s Notice of Motion and Supporting Documents (Motion Sequence 013)
Defendant Capital One, N.A. (hereinafter referred to as "Defendant Capital One") has moved by notice of motion for an order pursuant to CPLR § 3212 granting summary judgment and, accordingly, dismissing the complaint as against them, and for a default judgment as against Defendant Patricia A. Riccio (hereinafter referred to as "Patricia"). Defendants Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York (hereinafter referred to as "Defendants Genworth") have moved by notice of motion for an order pursuant to CPLR § 3212 granting summary judgment and, accordingly, dismissing the complaint as against them. Plaintiff has moved by notice of motion for an order pursuant to CPLR § 3212 granting summary judgment as against Defendant Capital One, and has cross-moved by notice of cross-motion for an order pursuant to CPLR § 3212 granting summary judgment as against Defendants Genworth. Defendants Genworth and Defendant Capital One have opposed Plaintiff's motions, and all parties have replied on all respective motions. Oral argument was held on August 30, 2017 and the motion was deemed submitted upon the Court's receipt of the transcripts therefrom. Defendant Capital One further moved for an order holding Defendant Patricia in contempt and for a warrant for her arrest. No opposition was received with respect to the contempt motion.
CPLR § 3212(b) states, in relevant part, that a motion for summary judgment shall be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party".
"The standards regarding summary judgment motions are familiar and fundamental. The party moving for summary judgment ‘bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law’ ( Holtz v. Niagara Mohawk Power Corp., 147 A.D.2d 857, 858, 538 N.Y.S.2d 80 ). Once such a showing has been established, the ‘burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact’ ( Mahar v. Mahar, 111 A.D.2d 501, 502, 488 N.Y.S.2d 526 ; see also, Ferber v. Sterndent Corp., 51 N.Y.2d 782, 433 N.Y.S.2d 85, 412 N.E.2d 1311 ; Cusano v. General Elec. Corp., 111 A.D.2d 557, 489 N.Y.S.2d 622 ). General conclusory statements, expressions of hope, and repetition of the allegations in the pleadings do not constitute evidentiary proof substantiating the party's claim and, therefore, are insufficient to defeat a summary judgment motion". Fresh Meadows Country Club v. Lake Success, 158 A.D.2d 581, 551 N.Y.S.2d 549 (2d. Dept.1990).
The underlying amended complaint alleges breach of contract as against both Defendants Genworth and Defendant Capital One, negligence as against Defendants Genworth and Defendant Capital One, gross negligence and/or willful misconduct as against Defendants Genworth and Defendant Capital One, breach of fiduciary duties as against Defendants Genworth and Defendant Capital One, and violation of GBL § 349 as against Defendants Genworth and Defendant Capital One. The allegations stem from a series of transactions between the parties involving an annuity taken out by Plaintiff from which funds were allegedly looted by her daughter, Defendant Patricia.
As a threshold matter, Defendants Genworth argue, and Plaintiff does not explicitly dispute, that their various entities are improperly named in the complaint and they should be named only as Genworth Life Insurance Company of New York, and the complaint should be dismissed as against the other various entities. In light of the lack of opposition and Defendants Genworth's arguments, the matter is dismissed as against the remaining Defendants Genworth.
The underlying undisputed facts are as follows:
One August 14, 2013, Plaintiff and her son (who held her Power of Attorney POA)) traveled to a branch of Defendant Capital One and spoke with bank employee Lorenz Zaragoza. Zaragoza recommended Plaintiff invest the funds in question, in the amount of $271,253.00, in an annuity through Defendants Genworth, and Plaintiff and her son completed the necessary application wherein Plaintiff requested a monthly payment from the annuity of $1100 through electronic funds transfer (EFT). Plaintiff completed and signed a "Systematic or auto interest withdrawal request for fixed annuities" form (hereinafter the "SAIWR") and an "Annuity contract change form" (hereinafter the "ACCF") on August 28, 2013. Defendants Genworth acknowledged receipt of the SAIWR and acknowledged receipt and approval of the EFT through correspondence dated September 3, 2013. They acknowledged receipt of the ACCF on August 29, 2013. In response to the filing of the forms, Defendants Genworth issued an "Individual Single Premium Deferred Annuity Contract".
On or about September 20, 2013, a teller at a branch of Defendant Capital One, Angela Jimenez, faxed a "Fixed Annuity withdrawal authorization form" (FAWA) to Defendants Genworth signed by Plaintiff which requested a withdrawal in the amount of $10,000 and authorized Defendant Patricia to make telephone withdrawals from the account. Purportedly Defendant Patricia brought the document to this particular branch, not Plaintiff's home branch, to be faxed and was allegedly unaccompanied. Defendants Genworth sent a letter at the address of record confirming the written request to add Defendant Patricia as an authorized agent.
In or about March 2014, it was discovered that Defendants Genworth had processed seven lump-sum withdrawals which had been requested via telephone by Defendant Patricia. The withdrawals and fees totaled $224,958.42. On January 28, 2014, Frank Bongiorno of Defendant Capital One contacted Defendants Genworth about the account, informed them that Plaintiff and her son were unaware of the withdrawals and that he would look into the matter further. Two of the seven lump-sum withdrawals post-dated that call totaling $59,139.78 including associated fees.
Pursuant to their protocol, when each of the seven telephone withdrawal requests were made, Defendants Genworth sent a confirming letter to the address of record, and then subsequently thereto issued checks, each made out to Plaintiff Mary Riccio and sent to the address of record.
Worthy of note are the fact that Plaintiff, her son Robert Urena, and Defendant Patricia, resided together throughout the relevant time period and, it appears from submitted evidence, continue to reside together. Further, records from Pay–O–Matic Corporation, including photographs captured during the deposits of each check issued as a withdrawal from the annuity, demonstrate that Plaintiff was present each time one of the disputed withdrawal checks was deposited.
Plaintiff alleges, with respect to Defendant Capital One, that it failed to validate the authenticity of the FAWA before faxing it to Defendants Genworth, that Angela Jimenez acted with negligence or gross negligence in sending the fax, that Defendant Capital One failed to appropriately monitor or stop the withdrawals after being put on notice by Frank Bongiorno constituting negligence and/or breach of fiduciary duty, and that they transferred funds by check and not exclusively through EFT in breach of their written agreement constituting breach of contract.
Plaintiff alleges, with respect to Defendants Genworth, that they breached the terms of the annuity contract by transferring funds via the issuance of a check as opposed to EFT, that Defendants Genworth acted with negligence or gross negligence by continuing to honor the withdrawal requests from Defendant Patricia after being contacted by Frank Bongiorno on January 28, 2014, and that Defendants Genworth overbilled surrender charges in breach of contract and in violation of GBL § 349.
"The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach". Dee v. Rakower, 112 A.D.3d 204, 976 N.Y.S.2d 470 (2d. Dept.2013).
The provision of the SAIWR that Plaintiff alleges was breached by both Defendant Capital One and Defendants Genworth is Section 5, "Payment method" wherein Plaintiff checked off the box labeled "Electronic funds transfer (EFT)" which states: "You authorize the Company to automatically transfer payments into your account, and make any necessary adjustments to your account, with the understanding that you or your agent will be notified. This authorization will remain in effect until we receive written notification from you to do otherwise". The top of the form states: "Use this form to initiate a systematic withdrawal on annuity contracts issued by Genworth Life & Annuity, Genworth Life and Genworth Life of New York. Systematic withdrawals may not be available for all products and/or riders".
Plaintiff further argues that the FAWA executed on or about July of 2013, which Plaintiff contends is fraudulent and does not contain her actual signature, also binds Defendants Capital One and Defendants Genworth to transfer funds requested via telephone authorization only via EFT. The form contains the following relevant language in the "Telephone withdrawal authorization" section: "If EFT authorization is on record, payments under this telephone withdrawal authorization will be made via EFT, otherwise, a check will be mailed to the address of record".
Defendant Capital One annexes to their papers the Account Agreement which contains the following relevant provision:
"Oral instructions. You may follow my oral instructions and those of my authorized agent, (designated by me in writing), and you shall not be liable for acting upon any instructions which you believe in good faith to have been so given. I understand that you shall provide me with one or more telephone numbers which may be used for the purpose of giving oral instructions during the hours and the days permitted by you and that for our mutual protection you may record such telephone conversations".
Defendant Capital One also annexes an excerpt of Plaintiff's April 7, 2017 deposition transcript wherein she acknowledges that she agreed to give Defendant Patricia certain monies from the annuity:
A: I don't know the date it was, but I remember it was warm out and Billy and Robert were on the porch and she was standing by the kitchen door. I must have been washing dishes, which I guess she was listening to what they were saying, and that's how she found out.
Q: Now, you heard Robert and Billy speaking on the porch about the annuity?
A: He told me later they were talking about that.
Q: So you didn't know at the time-
A: That they were talking about, no.
Q: Now, I guess when Patty first learned about it, what's the first interaction you can recall with her where she brought I guess to your attention that, hey, there's an annuity, what's going on?
A: I know she mentioned sometime that she wanted some money, and then I discussed it with Robert and we decided, all right, we will give her $10,000, and I think that's what we did at the time.
Q:So your recollection is that she learned there was an annuity and the result was to ask you for money?
Q: Taking a step back, she had been asking you for money before she found out about the annuity or do you think it was she heard annuity and then said, do you think she said, oh, I want to go to my mom and ask—
A: I think after she found out about it.
Q: And so you recall her approaching you and saying, hey, I heard you have an annuity, can I have money?
A: Yes, something like that.
Q: And do you recall the conversation; was it harassing, was it a harassing conversation, was it a friendly conversation?
A: No. It was more of a friendly conversation, and then I spoke it over with Robert and we agreed to give her $10,000."
(P. 86 ln.1–p. 88 ln. 2)
Defendant Capital One, accordingly, argues that the fax sent by Angela Jiminez, which Plaintiff alleges was negligently sent, was sent by Defendant Patricia acting as Plaintiff's authorized agent as evidenced Plaintiff's own testimony that Defendant Patricia was authorized to withdraw the initial $10,000 from the annuity.
Defendants Genworth argue that Plaintiff has failed to point to specific contract provision that was breached by Genworth, and that the terms with respect to the surrender and withdrawal charges, which Plaintiff alleges constituted overbilling in violation of GBL § 349 were expressly laid out, and includes in their papers a table which demonstrates the gross withdrawal amount for each transaction, the applicable surrender charges, and the net payment withdrawal amount.
Plaintiff cites no case law in support of her assertions with respect to the SAIWR and FAWA that these documents required only EFT transfers as opposed to simply authorizing same as one means of transfer. No specific term of any of these documents precludes alternate means of transfer, and further, the Account Agreement explicitly provides for oral overrides by authorized agents, and Plaintiff admitted in her deposition that, at least as to the occasion when the FAWA was executed and faxed, Defendant Patricia was authorized to make that withdrawal and, accordingly, was properly on record as an authorized agent of Plaintiff. Therefore, no breach of contract can be demonstrated with respect to the SAIWR and FAWA due to the check transfer in lieu of the EFT. Notably, Plaintiff tries to use the terms of the FAWA to support their argument while simultaneously alleging that her signature was a forgery on same. Plaintiff has also notably failed to provide sufficient evidence to support her assertion that any of her signatures was a forgery, to wit, the affidavit of a handwriting analyst or such similar documentary support.
With regard to Defendants Genworth's assertion that no specific contract provision is alleged to have been breached, the same reasoning applies as to the SAIWR and the FAWA, and Plaintiff has not pointed to any other specific breach as to Defendants Genworth. Further, as to the GBL § 349 claim, Plaintiff's own calculations are simply erroneously calculated and that claim has no basis in the record.
Accordingly, the breach of contract claims must be dismissed as against both Defendant Capital One and Defendants Genworth.
"In order to prevail on a negligence claim, ‘a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom’ ( Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294  ). In the absence of a duty, as a matter of law, there can be no liability ( id. at 1028, 499 N.Y.S.2d 392, 489 N.E.2d 1294 ; see also Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184  [‘(w)ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm’] ). The definition and scope of an alleged tortfeasor's duty owed to a plaintiff is a question of law (see Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189  )". Pasternack v. Laboratory Corp. of America Holdings, 27 N.Y.3d 817, 37 N.Y.S.3d 750, 59 N.E.3d 485 (2016).
"A "clear contractual provision limiting damages is enforceable absent a special relationship between the parties, a statutory prohibition, or an overriding public policy" ( Johnston v. MGM Emerald Enters., Inc., 69 A.D.3d 674, 676, 893 N.Y.S.2d 176, quoting Schietinger v. Tauscher Cronacher Professional Engrs., P.C., 40 A.D.3d 954, 955, 838 N.Y.S.2d 95 ; see Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 553, 583 N.Y.S.2d 957, 593 N.E.2d 1365 ; Peluso v. Tauscher Cronacher Professional Engrs., 270 A.D.2d 325, 325, 704 N.Y.S.2d 289 ). ‘Nonetheless, the public policy of this State dictates that ‘a party may not insulate itself from damages caused by grossly negligent conduct’' ( Goldstein v. Carnell Assoc., Inc., 74 A.D.3d 745, 746, 906 N.Y.S.2d 905, quoting Sommer v. Federal Signal Corp., 79 N.Y.2d at 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365 ). Gross negligence ‘differs in kind, not only degree, from claims of ordinary negligence’ ( Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823, 595 N.Y.S.2d 381, 611 N.E.2d 282 ). To constitute gross negligence, a party's conduct must "smack[ ] of intentional wrongdoing" or ‘evince[ ] a reckless indifference to the rights of others' ( Sommer v. Federal Signal Corp., 79 N.Y.2d at 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365, quoting Kalisch–Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 385, 461 N.Y.S.2d 746, 448 N.E.2d 413 ). ‘Stated differently, a party is grossly negligent when it fails ‘to exercise even slight care’ or ‘slight diligence" ( Goldstein v. Carnell Assoc., Inc., 74 A.D.3d at 747, 906 N.Y.S.2d 905, quoting Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 172, 445 N.Y.S.2d 60, 429 N.E.2d 738 and Dalton v. Hamilton Hotel Operating Co., 242 N.Y. 481, 488, 152 N.E. 268 )". Ryan v. IM Kapco, Inc., 88 A.D.3d 682, 930 N.Y.S.2d 627 (2d. Dept.2011).
The negligence questions herein turn on the existence of a duty, if any, owed to Plaintiff by each of the Defendants.
As to Defendant Capital One, Plaintiff alleges that the faxing of the FAWA by Angela Jiminez constituted gross negligence. Defendant Capital One contends that Plaintiff has failed to demonstrate that they owed any duty to Plaintiff outside the bounds of the contractual relationship created by the contracts referenced in the Opening Documents citing Teller v. Bill Hayes, Ltd. which holds, in relevant part,
"The plaintiff's claims are grounded in the breach of a construction contract and as a general rule, the breach of a contract does not give rise to tort liability unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract (see, Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; Rich v. New York Cent. & Hudson Riv. R.R. Co., 87 N.Y. 382 ; 431 Conklin Corp. v. Rice, 181 A.D.2d 716, 717, 580 N.Y.S.2d 475 )". 213 A.D.2d 141, 630 N.Y.S.2d 769 (2d.Dept.1995).
Plaintiff argues, in opposition, that Defendant Capital One and their agents were acting as "investment advisers" to Plaintiff and this created a duty separate from the contract. Plaintiff cites no case law or statutory authority in support of their conclusory allegation.
Notably, as to the Angela Jiminez argument it is noteworthy that she was a teller in another branch of Capital One bank unrelated to the account, and her October 17, 2016 deposition testimony supports their contention that the fax was sent merely as a courtesy to a customer as she states:
Q: Do you have any duties with respect to faxing documents for customers or not faxing documents?
Q: Okay. And maybe you can describe that for me?
A: If a customer would come in and ask me to fax over a document, I will do it as a courtesy.
Q: Okay. Now, does the bank, did the bank have any rules with respect to faxing documents?
Q: Were you provided any training with respect to faxing documents?
(P. 13 ln. 10–25).
Defendant Capital One further argues that the sending of the fax was nothing more than a ministerial act despite Plaintiff's attempt to characterize it as more, and the fax could have just as easily been sent from any other location and had the same effect, such as a copy store, a Kinko's, etc.
With respect to Plaintiff's argument as to her "relationship" with Lorenz Zaragoza, she has failed to demonstrate how this relationship extends beyond the terms of the contract inasmuch as Zaragoza was employed by Capital One and, in his capacity therein, referred Plaintiff for the sale of a insurance product and was, therefore, essentially acting as an insurance agent which is not a relationship that carries with any recognized duty under the law.
Defendants Genworth also argue that they owed no duty to Plaintiff beyond the terms of their annuity contract, similarly arguing that they were merely involved in the sale and servicing of any insurance product.
"Generally, the law is reasonably settled on initial principles that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage (see, Wied v. New York Cent. Mut. Fire Ins. Co., 208 A.D.2d 1132, 1133, 618 N.Y.S.2d 467 ; Hjemdahl–Monsen v. Faulkner, 204 A.D.2d 516, 517, 611 N.Y.S.2d 309 ; Rogers v. Urbanke, 194 A.D.2d 1024, 1025, 599 N.Y.S.2d 697 ; Harnish v. Joseph J. Naples & Assocs. ., 181 A.D.2d 1012, 1013, 581 N.Y.S.2d 504 ; Erwig v. Edward F. Cook Agency, 173 A.D.2d 439, 570 N.Y.S.2d 64 ). Notably, no New York court has applied plaintiffs' proffered "special relationship" analysis to add such continuing duties to the agent-insured relationship (see, Wied v. New York Cent. Mut. Fire Ins. Co., 208 A.D.2d 1132, 1133–1134, 618 N.Y.S.2d 467, supra)". Murphy v. Kuhn, 90 N.Y.2d 266, 660 N.Y.S.2d 371, 682 N.E.2d 972 (1997).
Beyond their conclusory assertions unsupported by documentary evidence, case law or statutory authority, or other cognizable legal argument, Plaintiff's contention that Defendant Capital One owed a duty to her outside the bounds of the annuity contract documents is without merit and, accordingly, no negligence or gross negligence claim can survive as against Defendant Capital One.
With respect to Defendants Genworth, they argue that the relationship between themselves and Plaintiff was nothing more than that of an insurance company and a policyholder, and cite to the matter of Freeman v. MBL Life Assur. Corp., which dealt with a plaintiff owner of an annuity sold to her and held by defendant insurance company. 60 F.Supp.2d 259 (S.D.N.Y.1999). The United States District Court for the Southern District of New York held, in relevant part, that
"Under New York law the relationship between an insurance company and a policyholder is a contractual relationship, not a fiduciary one. See Gaidon v. Guardian Life Insurance Co. of America, 255 A.D.2d 101, 679 N.Y.S.2d 611, (1st Dept.1998) (citing Rochester Radiology Assocs. v. Aetna Life Ins. Co., 616 F.Supp. 985 (W.D.N.Y.1985) ); see also Murphy v. Kuhn, 90 N.Y.2d 266, 660 N.Y.S.2d 371, 375, 682 N.E.2d 972 (1997) (holding that an insurance broker did not have a fiduciary duty to his customer even though the insured had been his customer for seventeen years and had provided several insurance services to the plaintiff). MBL notes that while the cases that Ms. Freeman cites in support of its argument hold that a special relationship creating tort liability may exist outside of a recognized professional relationship, see Ossining Union Free School District v. Anderson, 73 N.Y.2d 417, 541 N.Y.S.2d 335, 539 N.E.2d 91 (1989) (holding that architects and engineers were liable for statements made to school), New York courts specifically hold that insurers do not have such a relationship with their insureds. Ms. Freeman has not cited any cases which demonstrate that MBL had a duty to monitor her files more often than it did. Nor, as noted above, did either Mutual or MBL owe her any duty of care, as recognized under tort law. Their relationship was wholly contractual. Therefore, no claim in simple negligence lies". Id.
The facts in the instant matter are essentially identical and, accordingly, no fiduciary or special relationship exists between Defendants Genworth and Plaintiff such that a negligence, or gross negligence, claim can survive. The same holds true for Defendant Capital One whose role herein was merely that of the seller of the insurance product as Defendants Genworth maintained and serviced same.
It must be noted, as Defendants Genworth further argue, that, in any event, neither Defendants Genworth nor Defendant Capital One can be said to have acted unreasonably given the facts. Plaintiff acknowledged having agreed to permit Defendant Patricia to make the initial withdrawal which included the execution of the FAWA that permitted continued telephone withdrawals. Plaintiff acknowledged being present when each of the transfer checks were cashed regardless of her contention that she was coerced into being present which could not be observed or reasonably inferred from reviewing the videotape evidence that she was present. And finally, Plaintiff does not dispute that notices were sent to her home address notifying her of each withdrawal. Though Plaintiff does not affirmatively disavow her signature on the endorsement of each of the checks, she has also failed to produce any sufficient evidence that same were forgeries and she is unable to dispute her physical presence during the deposits.
While the circumstances surrounding the looting of this account by Defendant Patricia are unfortunate, the evidence and undisputed facts before the Court demonstrate that Plaintiff and her son, Robert Urena, were aware of a potential issue with regard to Defendant Patricia misappropriating her mother's funds, they nonetheless determined that the annuity account with Plaintiff alone as owner and signatory were the appropriate means of securing those funds without putting into place any safeguards such as the requiring of a co-signer for any modifications or perhaps instituting Article 81 proceedings if it seemed Plaintiff was not competent to handle her own financial affairs. Plaintiff admitted during her deposition testimony that she was present when Defendant Patricia Riccio deposited the checks drawn on her annuity account and was unable to dispute that she endorsed the checks. Accordingly, it cannot be stated that any wrongdoing on the part of Defendant Capital One or Defendants Genworth were the cause of any harm that befell Plaintiff and the action cannot survive as against them.
In light thereof, Defendant Capital One's motion seeking to hold Defendant Patricia Riccio in contempt for failure to comply with a subpoena shall be denied as academic.
Accordingly, it is hereby:
ORDERED, that the motion by Defendant Capital One, N.A. seeking summary judgment and dismissal of the complaint as against them is hereby granted in its entirety and the complaint filed under Index No.11790/2014 is hereby dismissed as against them; and it is further
ORDERED, that the motion by Defendants Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York seeking summary judgment and dismissal of the complaint as against them is hereby granted in its entirety and the complaint filed under Index # 11790/2014 is dismissed as against each of them; and it is further
ORDERED, that Plaintiff's motion and cross-motion each seeking summary judgment are hereby denied in their entirety; and it is further
ORDERED, that Defendant Capital One, N.A.'s motion seeking to hold Defendant Patricia Riccio in contempt is hereby denied as academic in light of the foregoing.
Defendants Genworth Financial, Genworth Life & Annuity, Genworth Life, and Genworth Life of New York shall serve a copy of this order upon all parties within ten (10) days of their receipt hereof.
This constitutes the decision and order of the Court.