Conteh v William Penn Life Ins. Co. of N.Y.

[*1] Conteh v William Penn Life Ins. Co. of N.Y. 2012 NY Slip Op 52033(U) Decided on October 24, 2012 Supreme Court, Bronx County Aarons, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 24, 2012
Supreme Court, Bronx County

Patricia Conteh, Plaintiff,

against

William Penn Life Insurance Company Of New York, Defendant.



302648/10



The plaintiff was represented by Samuel A. Kamara, (646) 221-5680.

The defendant was represented by Robert D. Meade of Bleakley Platt & Smidt, LLP (914) 949- 2700.

Sharon A.M. Aarons, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of motion, as indicated below:

PapersNumbered

Notice of Motion/Order to Show Cause and Exhibits Annexed1, 3

Answering Affidavit and Exhibits-2, 4

Reply Affidavit and Exhibits-

Upon the foregoing papers and oral arguments held on April 9, 2012, the Decision and Order on the motions are as follows:

Plaintiff moves for summary judgment pursuant to CPLR § 3212 on the ground that plaintiff was married to the deceased, Musa Fofana, at the time of his death and was the named beneficiary in his life insurance policy. Defendant filed a motion seeking the appointment of a guardian ad litem and for leave to serve an amended answer and a third-party interpleader complaint to represent the potential interest of Hanefah Fofana and Halemah Fofana, the minor children of plaintiff, Patricia Conteh, and the deceased. Plaintiff's motion is granted and defendant's motion is denied. This Decision and Order addresses both motions.

Musa Fofana and Patricia Conteh, both from Sierra Leone, were married in 2000 in a

traditional African Muslim wedding in New York State, without having obtained a marriage license nor thereafter registering the marriage in any jurisdiction. The ceremony was officiated by an Imam (a Muslim clergy) who submitted an affidavit stating such. A videotape of the wedding was reviewed by the defendant who does not dispute that it shows Ms. Conteh and Mr. Fofana getting married. In 2002, Ms. Conteh gave birth to a set of twin girls, Hanefah and Halemah Fofana. The couple separated in 2004, and until the time of Mr. Fofana's death, they had separate residences. [*2]

In 2002, Mr. Fofana bought a life insurance policy from defendant for $500,000.00 coverage naming "Pat Fofana" as the beneficiary, although she used her maiden name and not her married name, along with Ms. Conteh's date of birth and her social security number. He named "Kadifa Fofana," a child from a prior marriage that ended in a divorce, as the contingent beneficiary, stating that the amount was to be divided between his children equally. In the application for the policy, Mr. Fofana stated that he had five children, only three, however, are known. Kadifa testified at her deposition that she attended the wedding of her father and Ms. Conteh and knew that at the time of his death they were separated. A search of the records in Bronx County and the records in Sierra Leone failed to produce any evidence that the couple were divorced or obtained an order of separation.

Ms. Conteh testified at her deposition that she left the marital residence because her brother and husband had a dispute. She and her husband, however, resolved their differences, continued sleeping together, and were discussing living together again at the time of his untimely death. She further testified that they were not divorced and she did not know why the death certificate listed him as divorced. At the commencement of the litigation, however, she was referred to as the ex-wife.

A marriage in the State of New York is not void because of the failure to obtain a marriage license, provided that the parties "solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife." DRL §§ 12, 25; Matter of Farraj, 72 AD3d 1082, 900 N.Y.S.2d 340 (2d Dept. 2010). NY Const. article 1, section 9(a) provides that a divorce cannot be granted "otherwise than by due judicial proceedings." Here, the wedding was solemnized by an Imam in the State of New York, and, while Mr. Fofana and Ms. Conteh were separated, there was no evidence that they were divorced or had a separation order.

In any event, this case is controlled by EPTL § 13-3.2, which governs the rights of beneficiaries named in a life insurance policy. EPTL § 13-3.2 provides that such asset "shall not be impaired or defeated by any statute or rule of law governing the transfer of property by will, gift or intestacy." As such, the assets of a life insurance policy do not pass under a will or intestacy, but by beneficiary designation. (See Turano, Practice Commentaries, McKinney's Cons. Laws of NY, Book 17B, EPTL 13-2.2, at 657). There is no evidence that Mr. Fofana took any steps to change beneficiary from the time they separated until his death. See McCarthy v. Aetna Life Ins. Co., 92 NY2d 436, 441, 704 N.E.2d 557, 681 N.Y.S.2d 790 (1998); Lincoln Life & Annuity Co. v. Caswell, 31 AD3d 1, 9 813 N.Y.S.2d 385 (1st Dept. 2006); Storozynski v. Storozynski, 10 AD3d 419, 781 N.Y.S.2d 141 (2d Dept. 2004).

Accordingly, plaintiff's motion for summary judgment is granted as it sets forth sufficient evidence that Musa Fofana did not take any steps to change the beneficiary prior to his death and defendant failed to raise a triable issue of fact that Ms. Conteh is not entitled to the proceeds. Storozynski, 10 AD3d at 420. Defendant's motion to appoint a guardian ad litem to protect the potential interests of Hanefah and Halemah Fofana is denied.

The foregoing constitutes the Decision and Order of the Court.

Date:October 24, 2012

_____________________________

Sharon A.M. Aarons, J.S.C.