| Matter of Walker |
| 2014 NY Slip Op 03525 [117 AD3d 838] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Bernadette Agnes Walker, Also Knownas Bernadette A. Walker, Deceased. Dennis Phillip Walker III, Appellant; Long IslandUniversity, Respondent. |
Charles E. von Schmidt, Dix Hills, N.Y. (Nicholas E. Tishler of counsel), forappellant.
Nixon Peabody LLP, Jericho, N.Y. (Michelle Yuen of counsel), for respondent.
In a proceeding for the administration of a decedent's estate, in which theadministrator of the decedent's estate petitioned pursuant to SCPA 2103 for the turnoverof assets in the possession of Long Island University that allegedly belong to thedecedent's estate, the petitioner appeals from an order of the Surrogate's Court, SuffolkCounty (Czygier, S.), dated July 19, 2012, which granted the motion of Long IslandUniversity to dismiss the petition pursuant to CPLR 3211 (a).
Ordered that the order is reversed, on the law, with costs, and the motion of LongIsland University to dismiss the petition pursuant to CPLR 3211 (a) is denied.
This proceeding concerns a death benefit offered by the respondent Long IslandUniversity (hereinafter LIU) to be paid when an LIU administrator dies while activelyemployed by LIU. Here, the decedent, a long-time employee of LIU, designated her sisteras the beneficiary of a group term life insurance policy, but allegedly did not make abeneficiary designation as to the LIU death benefit. Upon the decedent's death in 2009,LIU paid the death benefit to the decedent's sister, pursuant to LIU's policy of payingdeath benefits either to a surviving spouse or to the individual designated as thebeneficiary of the group term life insurance policy. The administrator of the decedent'sestate petitioned for the turnover of the death benefits to the estate, alleging that LIUwrongfully refused to pay the death benefit to the decedent's estate. According to thepetitioner, pursuant to EPTL 13-3.2, in the absence of a separate beneficiary designationfor the death benefit, the death benefit should have been paid to the estate, to bedistributed pursuant to the rules of intestacy.
LIU moved to dismiss the petition pursuant to CPLR 3211 (a) on the grounds thatdocumentary evidence established a complete defense to the petition (see CPLR3211 [a] [1]), that the claims in the petition were barred by payment (see CPLR3211 [a] [5]), and that the petition failed to state a cause of action (see CPLR3211 [a] [7]). LIU relied on, inter alia, a brochure entitled [*2]Benefits at a Glance, a 1977 beneficiary designation form,and an affidavit and a transcript of deposition testimony of LIU's Director of EmployeeBenefits. The Surrogate's Court granted the motion, concluding that documentaryevidence established a complete defense to the petition, and that LIU's payment of certainmonies barred the claims against it. The petitioner appeals.
"A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the'documentary evidence resolves all factual issues as a matter of law, and conclusivelydisposes of the plaintiff's claim' " (Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010], quotingFortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383, 383 [2002]; see Leonv Martinez, 84 NY2d 83, 88 [1994]; Berger v Temple Beth-El of GreatNeck, 303 AD2d 346, 347 [2003]). The Surrogate's Court should not haveconsidered an affidavit and a transcript of deposition testimony submitted by LIU indetermining whether the petition should have been dismissed, as neither qualifies asdocumentary evidence (see Fontanetta v John Doe 1, 73 AD3d at 85; Berger vTemple Beth-El of Great Neck, 303 AD2d at 347). In addition, neither the brochure,nor the beneficiary designation form, conclusively established that the beneficiary of thedeath benefit was to be determined by reference to the life insurance beneficiarydesignation form. In addition, LIU's submissions did not establish the defense ofpayment as a matter of law and, thus, it was error to grant LIU's motion on that ground(see CPLR 3211 [a] [5]; Parkoff v Stavsky, 109 AD3d 646, 647 [2013]).
Accordingly, the Surrogate's Court should have denied LIU's motion to dismiss thepetition. Rivera, J.P., Chambers, Austin and Duffy, JJ., concur.