Angé v Holley-Angé

Angé v Holley-Angé 2014 NY Slip Op 07302 Decided on October 28, 2014 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 October 28, 2014
Friedman, J.P., Renwick, Manzanet-Daniels, Feinman, Kapnick, JJ.
13326 108196/08

[*1] Alexandre Angé, Plaintiff-Appellant, ——

v

Sandra Holley-Angé, etc., Defendant-Respondent.

Law Offices of Stephanie R. Cooper, P.C., New York (Stephanie R. Cooper of counsel), for appellant.

Millman Law Firm, White Plains (Paul M. Millman of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 26, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on his claims for unjust enrichment, money had and received, and conversion, and granted defendant's cross motion for summary judgment dismissing those claims, unanimously affirmed, without costs.

Although we affirm Supreme Court's order, we do so on different grounds. As an initial matter, we reject defendant's contention that we are without subject matter jurisdiction to hear plaintiff's state law claims. Federal court jurisdiction over the issue of preemption under the Federal Employee Retirement Income Security Act (29 USC § 1001 et seq.) (ERISA) is not exclusive, and New York State courts routinely determine

whether a particular claim is preempted by ERISA (see e.g. Kocourek v Booz Allen Hamilton Inc., 114 AD3d 567, 568 [1st Dept 2014]).

Plaintiff's claims were not preempted by ERISA, since plaintiff was neither a participant nor a beneficiary of an ERISA-regulated retirement plan, and thus lacked standing to assert his claims under § 502(a)(1)(B) of ERISA (see e.g. Pascack Valley Hosp. v Local 464A UFCW Welfare Reimbursement Plan, 388 F3d 393, 400 [3d Cir 2004], cert denied 546 US 813 [2005]). Further, plaintiff's claims did not seek "to remedy the denial of benefits under an ERISA-regulated pension plan" (Kocourek, 114 AD3d at 568), and did not relate to the structure or administration of an ERISA plan (see Hayman-Chaffey v Landy, 1996 WL 282051, *2, 1996 US Dist LEXIS 7245, *6 [SD NY, May 28, 1996, No. 96-Civ-1900(BSJ)]).

Plaintiff was not entitled to summary judgment on his claims for unjust enrichment or money had and received and those claims were correctly dismissed, since, among other things, defendant's failure to turn over to plaintiff the retirement benefits that she received as a surviving spouse of her deceased husband's estate was not against equity and good conscience (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]; Matter of Witbeck, 245 AD2d 848, 850 [3d Dept 1997]). Nor did plaintiff establish the merits of his claim for conversion, [*2]since he demonstrated no superior right of possession of the retirement benefits (see Lucker v Bayside Cemetery, 114 AD3d 162, 174 [1st Dept 2013], lv denied __ NY __, 2014 NY Slip Op 82425 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 28, 2014

CLERK