First Metlife Invs. Ins. Co. v Filippino
Annotate this CaseDecided on January 25, 2017
Supreme Court, Richmond County
First Metlife Investors Insurance Company, Plaintiff,
against
Erika Filippino and VIVIAN AMATO, Individually and as Custodian for C.F., a minor, under New York Uniform Transfer to Minors Act, Defendants.
101298/2015
Philip G. Minardo, J.
The following papers numbered 1 to 5 were fully submitted on the 1st day of
December, 2016.
Papers Numbered
Notice of Motion for Summary Judgment by Defendant Erika Filippino against Defendant Vivian Amato, with Supporting Papers (dated August 29, 2016) 1
Notice of Cross Motion by Defendant Vivian Amato to Dismiss the Second Cross-Claim of Defendant Erika Filippino pursuant to CPLR 3211(a)(7), with Supporting Papers (dated October 28, 2016). 2
Affirmation of W.F. van den Houten, Guardian Ad Litem for C.F. a Minor Defendant (dated September 23, 2016) 3
Affirmation in Opposition to Cross Motion (dated November 15, 2016) 4
Reply Affirmation by Defendant Vivian Amato, Individually (dated November 23, 2016) 5
Upon the foregoing papers, the motion (Sequence No. 002) of defendant Erika Filippino for summary judgment on her second "counterclaim" [FN1] against defendant Vivian Amato, Individually and as Custodian for C.F., a minor, is granted, in part, and denied, in part, in accordance with the following; the cross motion (Sequence No. 003) of defendant Vivian Amato, Individually, for summary judgment dismissing defendant Erika Filippino's second cross claim, inter alia, for dismissal pursuant to CPLR 3211(a)(7), is denied.
Plaintiff First MetLife Investors Insurance Company (hereinafter, "plaintiff") has commenced this stakeholder's action pursuant to CPLR 1006 for a court order directing the proper distribution of the proceeds of MetLife Yearly Renewable Term Life Insurance Policy No. 208177276FM (hereinafter, the "policy"). In its interpleader complaint, plaintiff alleges that on [*2]or about June 18, 2008, its insured, Frank Filippino, designated his wife, Erika Filippino, as the sole beneficiary under the policy, but that, subsequently, on or about October 11, 2013, he executed a MetLife "Life Insurance Change of Beneficiary" form wherein he (1) designated his son, C.F. a minor, as the sole primary beneficiary of the policy, and (2) designated his sister, Vivian Amato, as custodian for his son. On or about June 21, 2014, i.e., during the pendency of a matrimonial action which was commenced in 2013, Mr. Filippino died, whereupon benefits in the amount of $750,000.00 became payable under the terms of the policy [FN2] . By letter to MetLife dated July 15, 2014, counsel for the insured's widow, Erika Filippino, challenged the validity of the Change of Beneficiary form referenced above on the grounds that it was executed by plaintiff's insured in violation of a "Notice of Automatic Restraining Order" dated August 15, 2013, served upon him simultaneously with the summons and complaint in the matrimonial action.[FN3]
After defendants Erika Filippino and Vivian Amato interposed separate answers to the complaint, the codefendants moved and cross-moved for summary judgment on defendant Filippino's "second counterclaim" (i.e., cross claim) against co-defendant Amato, Individually and as Custodian for C.F., a minor, under New York's Uniform Transfer to Minor Act. In pertinent part, Ms. Filippino alleges that (1) any change of beneficiary to a life insurance policy effectuated by either Frank Filippino or defendant Vivian Amato is null and void as violative of the automatic restraining order in the Filippino divorce action, (2) the proceeds of any such life insurance policies received by defendant Vivian Amato in violation of said restraining order should be turned over to defendant Erika Filippono, the alleged proper beneficiary, (3) any claims by codefendant Amato, as "custodian for C.F., a minor", should be dismissed as violative of the above retraining order, and (4) the conduct of co-defendant Amato tortuously interfered "with the contract concerning the Life Insurance policies between plaintiff, Frank Filippino and Erika Filippino".
In support of defendant Filippino's motion for summary judgment on her second cross claim against defendant Amato, the former maintains, inter alia, that it is undisputed that the change in beneficiary by plaintiff's insured was made during the pendency of their divorce action, [*3]without the permission of the matrimonial court, and in purported violation of the automatic restraining order set forth in DRL §236 B(2)(b). Thus, any such changes are claimed to be null and void as a matter of law, rendering Ms. Filippino the rightful beneficiary of the MetLife life insurance policy at issue. As a result, she asks that the proceeds of (1) this policy, and (2) those of any other MetLife life insurance policies formerly owned by decedent (e.g., Policy Nos. 21426556FM and 208139810FM), the proceeds of which were allegedly paid to Vivian Amato as a result of her brother's "illegal" change of beneficiary (minus the insured's funeral expenses) be remitted to her.
In opposition to the above and in support of her cross motion for summary judgment dismissing Ms. Filippino's second cross claim against her, codefendant Amato argues, in relevant part, that when the Filippinos' divorce action abated upon the death of Frank Filippino, the automatic restraining order was simultaneously rendered unenforceable. Therefore, codefendant Filippino's attempt to set aside her deceased husband's change of beneficiary should be rejected as a matter of law.
It is the opinion of this Court that by changing the primary beneficiary of the policy in issue, MetLife Policy No. 208177276FM, from his wife to his sister, Vivian Amato, "as custodian for his minor son" during the pendency of their divorce action, plaintiff's insured violated the Automatic Restraining Order(s) served in that action (see Domestic Relations Law §236 B[2][b]; Reliastar Life Ins. Co. of NY v Cristando, 129 AD3d 701, 702). Stated otherwise, defendant Amato's contention that the untimely passing of her brother operated to divest this Court of jurisdiction over any claims arising from the violation of the automatic restraining order(s) served simultaneously with the summons and complaint in the matrimonial action, is rejected (id.).
Turning to the balance of the motion and cross motion for summary judgment and/or dismissal of Ms. Filippino's remaining cross claims against Ms. Amato, neither defendant has met her initial burden of tendering legally sufficient evidence to eliminate all material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Thus, the cross motions for summary judgment with regard thereto must be denied.
Accordingly, it is
ORDERED, that the motion of defendant Erika Filippino for summary judgment on her second cross claim against defendant Vivian Amato, individually and as custodian for C.F., a minor, is granted solely to the extent of directing the stakeholder, First MetLife Investors Insurance Company, to pay the proceeds of the deceased Frank Filippino's MetLife Yearly Renewable Term Life Insurance Policy No. 208177276FM to said defendant within 10 days of the service upon it of a copy of this Decision and Order with notice of entry; and it is further
ORDERED, that the balance of said motion and the cross motion of defendant Vivian Amato are denied in their entirety; and it is further
ORDERED, that the Clerk enter judgment accordingly.
E N T E R,
Dated: January 25, 2017
/s/ Philip G. Minardo
J.S.C. Footnotes
Footnote 1:Although improperly designated a counterclaim, any cause of action asserted against a codefendant constitutes a cross claim (see CPLR 3019) and shall be designated as such by the court.
Footnote 2:It is undisputed that at the time of Frank Filippino's death, the divorce action entitled Filippino v Filippino, bearing Index No. 50718/2013, was in its pre-trial/discovery stage, had not been settled in any regard, and that a judgment of divorce had not been entered.
Footnote 3:Domestic Relations Law §236 B(2)(b) provides, in pertinent part, that a plaintiff in a matrimonial action "shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic [restraining] orders...[which] shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged." Notably, this so-called "statutory restraint" (Scheinkman, Practice Commentaries, Cons Laws of NY, Book 14, C236B:48, p 330) specifically prohibits a party from changing the beneficiary of any existing life insurance policy, and that all existing life insurance must be kept in full force and effect during the pendency of the action (DRL §236 Part B[2][b]).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
