New York Life Ins. & Annuity Corp. v Wei Ping Lin

New York Life Ins. & Annuity Corp. v Wei Ping Lin 2012 NY Slip Op 07574 Decided on November 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2012
Gonzalez, P.J., Saxe, Catterson, Acosta, Gische, JJ.
8489 106297/09

[*1]New York Life Insurance and Annuity Corporation, Plaintiff-Respondent, ——

v

Wei Ping Lin, Defendant-Respondent, Zhonghui Chen, Defendant-Appellant.




Kevin Kerveng Tung, P.C., Flushing (Kenji Fukuda of counsel),
for appellant.
Lawler Mahon & Rooney, LLP, New York (Christopher S.
Rooney of counsel), for New York Life Insurance and Annuity
Corporation, respondent.
John Yong, New York (Anthony Y. Cheh of counsel), for Wei
Ping Lin, respondent.

Order and judgment (one paper), Supreme Court, New York County (Paul G. Feinman, J.), entered October 28, 2011, which, inter alia, granted plaintiff's motion for summary judgment declaring which defendant was the proper beneficiary of an insurance policy issued by plaintiff, granted defendant Lin's cross motion for summary judgment declaring that Lin is the proper beneficiary of the life insurance policy, and denied defendant Chen's cross motion for summary judgment declaring that the subject change in beneficiary form is void, unanimously affirmed, without costs.

Plaintiff and Lin made a prima facie showing that Chen was competent and unaffected by undue influence when he executed a change of beneficiary form for the life insurance policy. In opposition, Chen failed to raise triable issues of fact as to his mental capacity or the existence of a fiduciary or confidential relationship between him and plaintiff (see Kramer v Danalis, 66 AD3d 539, 539-540 [1st Dept 2009]). Plaintiff's medical evidence was unsworn and therefore insufficient to raise an issue of fact (see Henkin v Fast Times Taxi, 307 AD2d 814, 814-815 [1st Dept 2003]). Given Chen's failure to submit competent medical evidence in support of his assertion of incapacity, the court was under no obligation to hold a hearing (see Roach v Benjamin, 78 AD3d 468, 469 [1st Dept 2010]).

We have considered Chen's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 13, 2012

CLERK