The following papers were considered in deciding the motion to summary judgment directing the New York City Employees Retirement System (NYCERS) to distribute the death benefits to the beneficiaries designated by the decedent in 2001, and other relief:Papers NumberedNotice of Motion and Affidavit 1, 2Affirmation in Opposition 3Affirmation in Reply 4DECISION AND ORDERBackground The decedent worked for the Sanitation Department of the City of New York. The decedent was a member of NYCERS. On October 3, 2001, he executed a designation of benefits in favor of his then girlfriend, Dinah Morales (“Morales”) and his mother, leaving them his death benefits in equal shares. The designation was received and filed by NYCERS on October 5, 2001. The decedent subsequently married petitioner, Marlyn Castagno (“Marlyn”) and had a daughter. He died on August 21, 2012. On January 17, 2013, Marlyn filed her notice of election with the Court. Limited letters of administration were issued to Marlyn on June 30, 2014.The decedent left an account (the decedent’s retirement account) with the NYCERS. At the time of his death on August 21, 2012, the NYCERS death benefit was valued at $288,924.73. Marlyn then brought this proceeding to establish her right to the NYCERS account. Marlyn alleges that the decedent was in the process of naming her and their daughter as beneficiaries of the NYCERS death benefits, but died before his designation could be notarized and filed with NYCERS. She asks that she and her daughter be determined entitled to the death benefits, either under the unnotarized and unfiled designation or under the doctrine of unjust enrichment.Morales now moves for summary judgment directing that NYCERS pay the benefits due her and Marlene Castagno, subject to the determination of the Marlene’s right of election. The petitioner opposes the motion.Discussion“It is well established that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’” which would require resolution at trial (Stonehill Capital Mgt. LLC v. Bank of the West, 28 NY3d 439, 448 [2016], quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see CPLR §3212(b); Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012]).Morales asks for an order directing NYCERS to distribute to her and Marlene Castagne, the death benefits, subject to the determination of the right of election of Marlyn. Morales further asks that the Court schedule a hearing on Marlyn’s “purported” right of election. However Morales fails to state any facts that would create an issue of fact on the validity of Marlyn’s exercise of her right of election. Marlyn filed her election with the Court and her appointment as administrator made service upon herself unnecessary. Based on the record, the court finds that Marlyn has validly exercised her right of election (EPTL §5-1.1-A[d][1]).The motion for summary judgment for payment of the death benefits to Morales and Marlene Castagne, reduced by Marlyn’s elective share, implicitly seeks dismissal of Marlyn’s claim for the entire NYCERS death benefits. Marlyn’s claim for the entire NYCERS death benefits is based upon two theories. The first is that the Court should give effect to the decedent’s clear attempt to change beneficiaries, notwithstanding his death before his signed new designation could be notarized and filed. The law is clear that the failure to file a notarized designation of benefits to NYCERS pursuant to its plan is fatal to a claim for NYCERS death benefits (Kruze v. Keleher, 31 Misc 2d 756 [Sup Ct, Queens County 1961] affd on other grounds 16 AD2d 687 [2d Dept 1962]).Marlyn’s second theory is based upon the doctrine of unjust enrichment. The elements of a claim for unjust enrichment are proof that “(1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party]to retain what is sought to be recovered.” (Goel v. Ramachandran, 111 AD3d 783, 791 [2d Dept 2013]; see also Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011]). In the instant case, Marlyn raises no facts showing the existence of a promise by the decedent’s former girlfriend or mother on which the decedent relied prior to designating them as his beneficiaries in 2001. Nor can the Court deem the distribution of death benefits to them pursuant to the 2001 designation of benefits unjust.This leaves the claim based on Marlyn’s exercise of her right of election. EPTL §5-1.1-A (b) (1) (G) grants a decedent’s surviving spouse a personal right of election against a pensioner’s death benefit, provided the beneficiary designation was made after September 1, 1992. “It is well settled that the pension death benefit is a testamentary substitute under EPTL §5-1.1-A(b)(1)(G)” (Matter of Richardson, 20 Misc 3d 1105 [A][Sup Ct, Bronx County 2008] [citation omitted]). The statute permits all of the death benefit to be treated as a testamentary substitute, which must be included in the estate for purposes of calculating the elective share of the surviving spouse.In applying EPTL §5-1.1-A, both the computation of the decedent’s estate and the computation of the surviving spouse’s elective share must account for all estate assets and testamentary substitutes, which include the decedent’s retirement account. EPTL §5-1.1-A(b)(2) states that share is: “the pecuniary amount equal to the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate.”The estate consists of the NYCERS death benefit in the sum of $288,924.73. The maximum due Marlyn from her right of election is one third, or $96,308.25. However, this amount must be adjusted by taking into account any other assets of the estate and reduced by the debts, funeral expenses, and administrative expenses (EPTL §5-1.1-A[a][2]). The petitioner does not provide the Court with any information on gross estate or the estate’s debts, funeral and administration expenses.Accordingly, Morales’ motion for summary judgment directing NYCERS to pay the death benefits to her and Marlene Castagno is granted to the extent NYCERS is directed to distribute two-thirds of the death benefit to Dinah Morales and Marlene Castagno, in equal shares, and to maintain the balance, $96,308.25 subject to the further order of the Court.The clerk of the court is directed to mail a copy of this decision (to all parties who have appeared in this proceedingThis constitutes the decision and order of the court.Dated: May 4, 2018
