ESTATE OF NAVEED BAIG, Deceased (15/4751/A) — In this miscellaneous proceeding, petitioner Fouzia Naveed (the petitioner), spouse of the decedent Naveed Baig (the decedent), petitioned to determine the validity and effect of her notice of right of election pursuant to EPTL §5-1.1-A, and to order respondent New York City Employees Retirement System (NYCERS) to pay to the petitioner one-third of the decedent’s death benefit as her elective share. The decedent died apparently without assets, and the sole testamentary substitute was the death benefit in the gross amount of $182,190.00. NYCERS filed objections and cross-claims against Ghulam Baig (Baig), the decedent’s father, to whom NYCERS paid the entire death benefit as the designated beneficiary. Baig filed objections in response. The petitioner now moves for summary judgment to order NYCERS to pay to the petitioner her one-third elective share or, in the alternative, ordering Baig to pay the petitioner’s elective share. NYCERS cross-moves for summary judgment dismissing the petition, or in the alternative, for summary judgment in favor of NYCERS against Baig on its cross-claims against Baig. Baig submits an attorney affirmation in opposition to both motions to the extent the motions seek relief against him.BACKGROUNDThe following facts are undisputed. The decedent died intestate on July 9, 2015, leaving a spouse, the petitioner herein, and their four young children, ages 4, 5, 9 and 11 at the time.1 As an employee of the City of New York, the decedent was a member of NYCERS and thus, entitled to a lump sum death benefit (“death benefit”) and to designate the beneficiary of the benefit upon death. In 2009, at the start of his employment, the decedent completed an application for membership to NYCERS and therein, designated his father, Baig, as sole beneficiary of the death benefit.About one month after the decedent’s death, on August 18, 2015, the petitioner provided NYCERS a copy of the decedent’s death certificate, along with a letter inquiring about the decedent’s death benefit. NYCERS’ Legal Division responded with a lengthy letter dated December 1, 2015 stating, in summary, that (a) under state law, the death benefit is payable to the designated beneficiary regardless of the relationship between the decedent and the beneficiary; (b) the petitioner may still be entitled to a portion of the benefit by filing a right of election in Surrogate’s Court within six months of the issuance of letters of administration or testamentary, but no later than two years from the date of death; and (c) in order to prevent NYCERS from distributing the entire death benefit to the designated beneficiary, the petitioner must serve a restraining order upon NYCERS within 30 days. The letter also enclosed an affidavit entitled “Decline Right of Election — Not Designated as a Beneficiary” and advised the petitioner that if she does not wish to pursue her right of election, she must sign the affidavit and return it to NYCERS within 30 days.Thereafter, on February 1, 2016, NYCERS’ Legal Division sent a second letter to the petitioner stating as follows:In the December 1, 2015 letter, you were granted until December 31, 2015 to submit a Court-ordered Stay, a Court-Ordered Temporary Restraining Order, or a Court Order instructing NYCERS to pay out the surviving spouses’s elective share.If you wished to waive your Right of Election, NYCERS asked that you sign and notarize Form #365-Decline Right of Election, Not Designated as a Beneficiary and return it to NYCERS.As of date of this letter, NYCERS has not received Form #365. Therefore, NYCERS will no longer hold any of the death benefits of Naveed Baig and will distribute them to the designated beneficiaries NYCERS has on file.Ten days later, on February 11, 2016, the petitioner visited NYCERS’ customer service office, filled out a form requesting an extension of time to hold the death benefit, and informed NYCERS that she had filed an administration petition in this Court on December 17, 2015 and was awaiting resolution of the petition. On February 16, 2016, NYCERS responded in writing that the petitioner’s request was being reviewed and that a written response would be forthcoming. Eight days later, by letter dated February 24, 2016, NYCERS’ Legal Division advised Baig that he was the designated beneficiary of the death benefit, and provided Baig with a form to fill out and a list of documents he must provide in order to collect the benefit. This letter did not advise Baig that the death benefit may be subject to deduction to account for the petitioner’s right of election. Nor did the letter mention that as of February 16, 2016, NYCERS was reviewing the petitioner’s written request to hold the payment of the death benefit in abeyance.The next day, by letter dated February 25, 2016, NYCERS’ Assistant General Counsel advised the petitioner that her request for an extension of time to provide a court order has been “granted” to April 25, 2016. Thereafter, on March 7, 2016, Baig returned the beneficiary form and necessary documentation to NYCERS for payment of the death benefit. This Court issued letters of administration to the petitioner on April 1, 2016, which the petitioner filed at NYCERS’ customer service office on April 7, 2016. On May 10, 2016, NYCERS’ Legal Division sent the petitioner a letter with identical language as the February 1, 2016 letter, stating that because the petitioner did not return Form #365, declining her right of election, NYCERS would distribute the death benefit to the designated beneficiary.Ten days later, on May 20, 2016, NYCERS sent a check to Baig in the net death benefit amount of $155,753.52, after deduction for federal withholding tax. On July 1, 2016, the petitioner filed a notice of right of election with this Court and on July 5, 2016, served the notice on NYCERS. Thereafter, by letter dated July 8, 2016, NYCERS informed the petitioner that the entire death benefit had been distributed to the designated beneficiary and suggested that the petitioner seek legal counsel.THE INSTANT MOTION AND CROSS-MOTIONPetitioner’s Motion for Summary JudgmentThe petitioner moves for summary judgment on the ground that NYCERS deprived the petitioner of her elective share of the death benefit by paying out the entire benefit before expiration of the statutory deadline to exercise her right of election under EPTL §5-1.1-A(d)(1). The petitioner argues that there was no legal basis for the imposition of the deadlines set by NYCERS in its letter of February 1, 2016, and that NYCERS provided the petitioner with confusing and contradictory information. The petitioner seeks an order directing NYCERS to pay the petitioner one-third of the death benefit, or in the alternative, an order directing Baig to pay the petitioner as his ratable contribution to her elective share under EPTL §5-1.1-A(c)(2). NYCERS’ Cross-Motion for Summary JudgmentNYCERS cross-moves for summary judgment on the ground that, pursuant to EPTL §5-1.1-A(b)(4), it was “fully justified, and indeed obligated” to pay the death benefit to Baig as the designated beneficiary and thus, is not liable to the petitioner. In support of its position, NYCERS cites the language in EPTL §5-1.1-A(b)(4), which states that “a corporation or other person” who pays out a death benefit to someone “who is otherwise entitled” to the benefit, shall be held free from any liability for making such payment, absent a court order restraining such payment. NYCERS contends that since the petitioner failed to serve NYCERS with a restraining order, it is shielded from liability and thus, the petition should be dismissed. In the alternative, NYCERS seeks summary judgment against Baig on its cross-claims for contribution and unjust enrichment, on the ground that “it is against equity and good conscience to permit Baig to retain the funds and order NYCERS to incur a double payment of funds.”Baig’s OppositionBaig submits opposition to the petitioner’s motion to the extent it seeks relief against him, on the ground that the petition asserted no claims for relief against Baig, and that NYCERS’ cross-claims against Baig are a nullity since NYCERS never commenced a third-party complaint against Baig. Baig argues that he was never served with process on any claim for relief against him, and thus, this Court lacks jurisdiction to order any relief against him. Baig further argues that even if there were claims asserted against him, he cannot be held liable since there is no res, i.e., tangible property, against which to provide equitable relief. Baig also submits that he has already spent all of the death benefit and thus, does not have any of the funds to return.SUMMARY JUDGMENT STANDARDSSummary judgment is a drastic remedy that may be granted only where there is an absence of any material issues of fact requiring a trial. See CPLR §3212(b); Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Failure to make this initial showing requires a denial of the motion, “regardless of the sufficiency of the opposing papers.” Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). In reviewing the sufficiency of the proponent’s submissions, the facts must be carefully viewed “in the light most favorable to the non-moving party.” Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 (2011). The court’s function in deciding a summary judgment motion is issue finding rather than issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957).Once the movant makes the requisite prima facie showing, the burden shifts to the party opposing the motion to set forth disputed facts, supported by evidentiary proof in admissible form, that necessitate a trial on any material issues. See CPLR §3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). The opposing party “may be permitted to demonstrate acceptable excuse for [their] failure to meet the strict requirement of tender [of evidence] in admissible form.” Id. However, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a motion for summary judgment. Id.DISCUSSIONPetitioner’s Motion is Granted; NYCERS’ Cross-Motion is DeniedThe Court finds that the petitioner’s notice dated July 1, 2016, asserting her right of election as surviving spouse pursuant to EPTL §5-1.1-A, is valid and that she timely filed the right of election well within the statutory time constraints of six months from the date of the issuance of letters of administration and within two years after the date of death. EPTL §5-1.1-A(d)(1). Further, the NYCERS death benefit is a testamentary substitute subject to the petitioner’s right of election. EPTL §5-1.1-A(b)(1)(g). Moreover, there is no dispute that there were no other assets in the decedent’s estate. Accordingly, there is no question that the petitioner is legally entitled to a one-third share of the death benefit and therefore, must be paid her share. EPTL §5-1.1-A(a)(2). Here, as the party who knowingly and wrongfully deprived the petitioner her elective share to which she was legally entitled as the surviving spouse, NYCERS must pay the petitioner.The undisputed facts show that in its communications with the petitioner, NYCERS repeatedly gave the petitioner confounding and contradictory information, imposed baseless and unreasonable deadlines, and unjustifiably paid out the entire death benefit to Baig, despite its express knowledge that the petitioner was asserting her right of election from the date of her first inquiry on August 18, 2015. While NYCERS places all the blame on the petitioner for why it paid petitioner’s share of the death benefit to Baig, the facts belie such a contention. In its first communication with the petitioner, NYCERS advised in a lengthy, confusing letter that she may be entitled to a portion of the benefit by filing a notice of election within six months from the issuance of letters of administration.2 However, NYCERS also advised, in the same letter, that the petitioner was required to provide NYCERS with a court order restraining payment of the benefit within 30 days of the letter. To confuse matters further, the letter also enclosed an affidavit which the petitioner was required to return within 30 days if she wished not to exercise her right of election.NYCERS fails to explain why it set a 30-day deadline for the petitioner to provide either a court order to preserve her elective share or an affidavit to decline her right of election, when it had advised the petitioner that she had six months to file a notice of her right of election after issuance of letters of administration. Nor does NYCERS cite to any law that required the petitioner to act within NYCERS’ self-imposed time constraints. This apparently arbitrary and onerous deadline in which to file a court proceeding, obtain an order, and serve it on NYCERS within 30 days, imposed upon a grieving spouse with difficulty with the English language and four young children, is unreasonable and impractical. NYCERS provides no explanation for such a truncated time requirement, when NYCERS itself failed to respond to the petitioner’s initial inquiry about the death benefit for over three months. To make matters worse, NYCERS then sent the petitioner two confusing letters, stating that unless the petitioner returned the affidavit waiving, not asserting, her right of election, the entire death benefit would be paid to the designated beneficiary. It is unclear why NYCERS repeatedly insisted that the petitioner return an affidavit waiving her right of election, when it was on notice as of August 18, 2015, that the petitioner was pursuing her elective share of the death benefit. Neither does NYCERS explain why it repeatedly informed the petitioner that because she failed to return the affidavit waiving her right of election, NYCERS was compelled to pay the entire death benefit to Baig.Meanwhile, during the time period that NYCERS was setting unreasonable deadlines for the petitioner to act, Baig had not even provided the necessary paperwork to collect the benefit. In fact, NYCERS did not advise Baig that he was the designated beneficiary until February 24, 2016, six months after NYCERS was made aware of the petitioner’s intentions, and Baig did not submit the paperwork necessary for payment until March 7, 2016. Thereafter, on April 7, 2016, the petitioner went to NYCERS’ office to personally serve a copy of the letters of administration, and NYCERS still paid out the entire sum to Baig six weeks later on May 20, 2016. Moreover, it does not appear that NYCERS ever informed Baig that the payout amount may be subject to the petitioner’s elective share. Neither does NYCERS assert that once it was served with the notice of right of election, it took any action to seek return of the petitioner’s share from Baig. Rather, NYCERS simply suggested the petitioner retain counsel and argues herein that the petitioner must now obtain and enforce a judgment against Baig.Having washed its hands of the matter, NYCERS contends that it is absolved of liability pursuant to EPTL §5-1.1-A(b)(4), which seemingly provides a defense in this instance. However, NYCERS showed an untenable disregard for the surviving spouse’s statutory right of election, and it cannot shield itself with a provision in the very statute that grants her that right. Such indifference to the spirit of the statute, meant to protect a surviving spouse from being wholly deprived of a deceased spouse’s estate, is untenable. See In re Fike’s Estate, 301 N.Y.S.2d 394, 396 (N.Y. Sur. 1969) (the statutory provisions in favor of a surviving spouse are remedial and are liberally construed in favor of the spouse); In re Guarnieri’s Will, 271 N.Y.S.2d 126, 128 (N.Y.Sur. 1966) (same). Therefore, the statute will not be construed in favor of NYCERS, where its actions impeded the purpose of the statute to the detriment of the surviving spouse who has been left with the care of the decedent’s four young children.3Moreover, the principles of equity and fairness dictate against applying a blanket defense in favor of NYCERS in this instance. The Surrogate’s Court is a court of equity with broad jurisdiction “to make a full, equitable and complete disposition of [a decedent's estate]…as justice requires.” SCPA 201(3). In its efforts to promote justice, a court of equity “stringently demands good faith, fairness, and uprightness” from all litigants who come before it. Nishman v. De Marco, 430 N.Y.S.2d 339, 349 (2d Dep’t 1980). Further, “[o]nce equity is invoked, the court’s power is as broad as equity and justice require.” Norstar Bank v. Morabito, 607 N.Y.S.2d 426 (2d Dep’t 1994). Here, the Court would be failing its duty to administer equity, if a seemingly convenient defense were mindlessly applied over the indefensible facts. Such a rigid application of the law is neither required, nor consistent with the Court’s paramount duty to do equity and promote the ends of justice.NYCERS could have taken a number of steps to avoid this result, but it failed even to attempt to remedy the situation. NYCERS cites to no other court order, law, regulation, or even an internal policy, that required NYCERS to pay out the entire death benefit to Baig when it did.4 Instead, NYCERS erroneously argues that it would have breached its fiduciary duty to its members by not paying Baig the entire benefit. However, it does not appear that Baig was demanding payment by a certain date, nor that NYCERS promised payment to Baig by a certain date. NYCERS could have advised Baig that, since there was a surviving spouse asserting her elective share, payment would be held in abeyance until her right of election was resolved.5 However, NYCERS made no such efforts, despite all of the efforts on the petitioner’s part to obtain her elective share.Accordingly, the petitioner’s motion for summary judgment is granted and NYCERS’ cross-motion seeking dismissal of petitioner’s claim is denied. Further, NYCERS’ motion, as it pertains to its cross-claims for contribution and unjust enrichment against Baig, is denied without prejudice as a dispute between living persons that must be brought in another court. Matter of Lainez, 435 N.Y.S.2d 798, 799 (2d Dep’t 1981).CONCLUSIONAll other arguments have been considered and found unavailing or otherwise moot. In accordance with the above, the court fixes the liability of NYCERS to the petitioner in the sum of $51,917.84 and directs NYCERS to make payment within 30 days of the date of this decision.Settle decree.Dated: November 20, 2017Brooklyn, New York1. The petitioner submits a marriage certificate, along with a translation from Urdu to English, which provides that the petitioner and the decedent were married on July 13, 2003 in Gujranwala, Pakistan. No party disputes the validity of the marriage, or that they remained married at the time of the decedent’s death, or that the petitioner is the spouse entitled to a right of election under EPTL §5-1.1-A.2. NYCERS’ letters would be baffling to even native English speakers. Here, the petitioner states that Urdu is her native language and consequently, she had difficulty deciphering NYCERS’ letters and conferred with family members and others to assist with translation. The petitioner also brought along family members to NYCERS’ customer service office to assist with the language barrier, and thus, NYCERS was aware that the petitioner was not proficient in English. Further, the petitioner states that she was, in fact, confused about the information from NYCERS and believed she only needed to obtain letters of administration and file a right of election within six months thereafter, to secure her share of the death benefit, which she did.3. This is not to say that EPTL §5-1.1-A(b)(4) would not provide a defense to a respondent in appropriate circumstances, such as when a corporation or person distributes a benefit to a designated beneficiary in the ordinary course of business without prior notice that a surviving spouse existed.4. NYCERS cites Retirement and Social Security Law §606, which establishes no deadline by which to make payment of death benefits.5. It would not have been unprecedented for NYCERS to hold payment of a death benefit to a designated beneficiary in abeyance for an extended period of time, even without a court order restraining payment, out of “fear the surviving spouse may also make claim to the benefit.” See Estate of Casale, 14/697, N.Y.L.J., Nov. 21, 2014, at 31 (col.5) (Sur. Ct. Richmond Cty.). Here, there was more than a mere fear that a spouse would make a claim. NYCERS knew a spouse was making a claim.
