| Kliamovich v Kliamovich |
| 2011 NY Slip Op 05233 [85 AD3d 867] |
| June 14, 2011 |
| Appellate Division, Second Department |
| William A. Kliamovich, Respondent, v Winifred T.Kliamovich, Also Known as Winifred T. McMahon, Appellant. |
—[*1] McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Patricia E. Hurahian, Evan M.Eisland, and Edmund C. Grainger III of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is the sole beneficiary of alife insurance policy, the defendant appeals from an order of the Supreme Court, RocklandCounty (Weiner, J.), entered March 9, 2010, which, upon a decision dated January 5, 2010,granted the plaintiff's motion, among other things, for summary judgment, denied the defendant'scross motion, inter alia, for summary judgment, declared that changes to beneficiaries made in1996 were valid and binding and that changes to beneficiaries made after 1996 were ineffectiveand void, and directed that the proceeds of the subject life insurance policy be turned over to theirrevocable beneficiaries as designated by a 1996 policy change request form and that the NassauCounty Treasurer pay the proceeds to the irrevocable beneficiaries. The notice of appeal from thedecision dated January 5, 2010, is deemed a notice of appeal from the order (see CPLR5512 [a]).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe plaintiff's motion, inter alia, for summary judgment, and substituting therefor a provisiondenying the motion, and (2) by deleting the provisions thereof declaring that changes tobeneficiaries made in 1996 were deemed valid and binding and that changes to beneficiariesmade after 1996 were ineffective and void, and directing that the proceeds of the subject lifeinsurance policy be turned over to the irrevocable beneficiaries as directed by a 1996 policychange request form and that the Nassau County Treasurer pay the proceeds to the irrevocablebeneficiaries; as so modified, the order is affirmed, without costs or disbursements.
On or about August 28, 1987, the plaintiff's father, William B. Kliamovich (hereinafter theinsured), purchased a life insurance policy with a death benefit of $250,000 from CompanionLife Insurance Company (hereinafter Companion). After the insured's death in October 2005, theplaintiff commenced this action against Winifred T. Kliamovich, also known as Winifred T.McMahon, the insured's wife, inter alia, for a judgment declaring that he is the sole beneficiaryunder the policy.
The plaintiff moved, inter alia, for summary judgment. In support of the motion, the [*2]plaintiff submitted, among other things, an undated policy changerequest form which designated the plaintiff and two others as irrevocable beneficiaries, and aletter dated July 29, 1996, which bore the signature stamp of Companion's president,acknowledging the request. The plaintiff contended that any change of beneficiary thereafter wasvoid, based upon a lack of consent by the irrevocable beneficiaries. The defendant cross-moved,inter alia, for summary judgment, disputing the validity of the 1996 changes and claimingentitlement to the policy proceeds pursuant to a policy change request form from 1998, thatdesignated the defendant as the primary beneficiary of the policy.
It is undisputed that neither the policy change request form, nor the July 29, 1996, letter,could be located in Companion's files. Consequently, the plaintiff was unable to produce theoriginal writings which allegedly would have been contained in Companion's files.
The best evidence rule requires the production of an original writing where its contents are indispute and sought to be proven (see Schozer v William Penn Life Ins. Co. of N.Y., 84NY2d 639, 644 [1994]). Under an exception to the rule, "secondary evidence of the contents ofan unproduced original may be admitted upon threshold factual findings by the trial court that theproponent of the substitute has sufficiently explained the unavailability of the primary evidenceand has not procured its loss or destruction in bad faith" (id. [citations omitted]; see Lipschitz v Stein, 10 AD3d634, 637 [2004]). "Once a sufficient foundation for admission is presented, the secondaryevidence is 'subject to an attack by the opposing party not as to admissibility but to the weight tobe given the evidence, with [the] final determination left to the trier of fact' " (Schozer vWilliam Penn Life Ins. Co. of N.Y., 84 NY2d at 646, quoting United States v Gerhart,538 F2d 807, 809 [1976]).
Here, the plaintiff established a sufficient foundation for the admission of the undated policyrequest change form and the letter dated July 29, 1996. A letter written to the plaintiff's attorneyby Companion's counsel set forth that despite a diligent search, Companion was unable to locatecopies of the policy change request form or the letter dated July 29, 1996. The plaintiff, in anaffidavit, set forth that he had found the policy change request form and the July 29, 1996, letteramong his father's personal papers, after his father's death. Companion's representative, JudySnowdon, testified at her deposition that the July 29, 1996, letter appeared to be a Companionletter, that it contained the stamp of the signature Ernest B. Johnson, Companion's president in1996, and that his stamped signature was used by Companion at the time. Snowdon also testifiedthat she had no reason to believe that the letter was not authentic. Moreover, a business eventnote and a letter dated November 12, 1997, which were located in Companion's files, referencedthe fact that the policy had an irrevocable beneficiary.
The interest of an irrevocable beneficiary in a life insurance policy cannot be divestedwithout the beneficiary's consent (see Ruckenstein v Metropolitan Life Ins. Co., 263 NY204 [1934]). Consequently, the plaintiff established his prima facie entitlement to judgment as amatter of law by demonstrating that the 1996 changes to the policy designated him, as well astwo others, as irrevocable beneficiaries, that he did not consent to any change in the policy and,as a result, any change in beneficiary after the 1996 changes was null and void. In opposition,however, the defendant raised a triable issue of fact by submitting evidence that Companionaccepted changes to the policy designating her as the primary beneficiary in 1998 and the solebeneficiary in 2000. That Companion accepted these subsequent changes, absent consent of thealleged irrevocable beneficiaries, raises an issue of fact as to the validity and/or authenticity ofthe 1996 changes which are not reflected in Companion's files. Accordingly, the Supreme Courterred in granting the plaintiff's motion, inter alia, for summary judgment (see Zuckerman vCity of New York, 49 NY2d 557 [1980]).
Similarly, the Supreme Court properly denied the defendant's cross motion, inter alia, forsummary judgment. While the defendant established her prima facie entitlement to judgment as amatter of law by submitting evidence demonstrating that the insured designated the defendant asthe primary beneficiary of the policy in 1998, and the sole beneficiary of the policy in 2000, theplaintiff, in opposition, raised a triable issue of fact by submitting the policy change request formand letter dated July 29, 1996.[*3]
The parties' remaining contentions either are withoutmerit or need not be addressed in light of our determination. Dillon, J.P., Balkin, Eng andRoman, JJ., concur. [Prior Case History: 26 Misc 3d 1212(A), 2010 NY Slip Op50080(U).]