The Court has before it three motions. The first motion was filed by defendant/third-party plaintiff COMPANION LIFE INSURANCE COMPANY ("COMPANION") for an Order, pursuant to CPLR 3212, granting partial summary judgment dismissing plaintiff's cause of action seeking accidental death benefits, and for an Order, pursuant to CPLR 1006(f), permitting COMPANION to deposit the insurance policy proceeds, plus accrued interest and less legal fees, costs and disbursements, with the Court and be discharged from any further liability. [*2]

The second motion was filed by defendant UNITED OF OMAHA LIFE INSURANCE COMPANY ("UNITED") for an Order, pursuant to CPLR 3212, granting summary judgment in favor of UNITED dismissing plaintiff's complaint as asserted against it.

The third motion is a cross-motion filed by plaintiff/third-party defendant LAURA NAGER ("plaintiff") for an Order, pursuant to CPLR 2221, granting leave to renew her prior motion for summary judgment, which was decided by Order dated September 14, 2006 (Werner, J.), and upon renewal, for an Order, pursuant to CPLR 3212, granting summary judgment in favor of plaintiff and against COMPANION in the amount of $1,000,000.00 plus interest from May 10, 2005.

The Court will first address UNITED's motion for summary judgment, then COMPANION's motion for partial summary judgment and to pay monies into court, and finally plaintiff's motion to renew.

This action was commenced by summons and verified complaint on March 8, 2006 against UNITED and its affiliate COMPANION seeking to recover the proceeds of a certain life insurance policy issued on the life of SCOTT NAGER ("Insured") alleged by plaintiff to be in the amount of $2,000,000.00. On or about April 17, 2006, UNITED and COMPANION served a verified answer upon plaintiff which asserted various affirmative defenses, including failure to state a cause of action and lack of in personam jurisdiction. In its answer, COMPANION acknowledged that the Insured applied to COMPANION on October 17, 2003 for a life insurance policy, and that COMPANION, not UNITED, issued a life insurance policy to the Insured on October 20, 2003, bearing policy number CL5077567, with a face value of $1,000,000.00. COMPANION further acknowledged in its answer that the aforementioned policy was in effect on the date of the Insured's death, to wit: February 27, 2005, and that the death benefit of $1,000,000.00 is now due and owing by COMPANION. COMPANION then commenced the within third-party interpleader action on April 24, 2006 against LAURA NAGER, as Administratrix of the ESTATE OF SCOTT NAGER, and ZACHARY GIBIAN. COMPANION alleges that it commenced the third-party interpleader action in order to deposit the $1,000,000.00 insurance proceeds into Court, in light of a then-pending homicide investigation involving both beneficiaries of the policy. COMPANION alerts the Court that according to the death certificate of the Insured, the Insured died as a result of "sharp force injuries of head and neck," and that the manner of death is listed as homicide.

Thereafter, plaintiff moved, by Order to Show Cause signed on June 9, 2006 (Spinner, J.), for partial summary judgment against COMPANION for payment of the $1,000,000.00 death benefit under the policy. COMPANION cross-moved for leave to amend its third-party complaint to add the Insured's parents, NATHAN NAGER and GLORIA NAGER ("third-party defendants" or "Insured's parents"), as third-party defendants. COMPANION alleges that the Insured's parents had expressed their intention to assert a claim to the death benefit proceeds under the policy. By Order dated September 14, 2006 (Werner, J.), the Court [*3]denied plaintiff's motion for partial summary judgment, finding that "from the submissions of the defendant and the parents of the deceased there is clearly an unresolved question of fact concerning the possible involvement of the plaintiff in the murder of the insured" (Order dated September 14, 2006, at 4 [Werner, J.]). Within the aforementioned Order, the Court granted COMPANION's cross-motion to amend its complaint, finding that COMPANION had met the requirements for interpleader of the Insured's parents pursuant to CPLR 1006, as they were claimants "who have made or may be expected to make a claim to the proceeds of the insurance policy" (Id.).

UNITED has moved for an Order, pursuant to CPLR 3212, granting summary judgment in favor of UNITED, alleging that UNITED did not issue any life insurance policy to the Insured and therefore has no obligation to pay plaintiff any insurance benefits which may have accrued upon the death of the Insured. In support thereof, UNITED has submitted an affidavit of RICHARD EGGERT, a manager in the Life Underwriting Department of Mutual of Omaha Insurance Company, of which UNITED is a subsidiary. Mr. Eggert avers that he has made a thorough and diligent search of the records of UNITED and has found no record of any application for life insurance received by UNITED from the Insured, and no record of any life insurance policy issued by UNITED to the Insured. As such, UNITED seeks summary judgment dismissing plaintiff's complaint as asserted against it.

On a motion for summary judgment, the test to be applied is whether or not triable issues of fact exist or whether on the proof submitted a court may grant judgment to a party as a matter of law (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Andre v Pomeroy, 35 NY2d 361 [1974]; Akseizer v Kramer, 265 AD2d 356 [1999]). It is well-settled that a proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (Dempster v Overview Equities, Inc., 4 AD3d 495 [2004]; Washington v Community Mut. Sav. Bank, 308 AD2d 444 [2003]; Tessier v NY City Health and Hosps. Corp., 177 AD2d 626 [1991]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Gong v Joni, 294 AD2d 648 [2002]; Romano v St. Vincent's Med. Ctr., 178 AD2d 467 [1991]; Commrs. of the State Ins. Fund v Photocircuits Corp., 2 Misc 3d 300 [Sup Ct, NY County 2003]).

In the case at bar, the Court finds that UNITED has made a prima facie showing of entitlement to judgment as a matter of law (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Andre v Pomeroy, 35 NY2d 361, supra; Rodriguez v NY City Transit Auth., 286 AD2d 680 [2001]). The burden then shifted to plaintiff to establish, by competent evidence in admissible form, the existence of material issues of fact that would warrant a trial with respect to [*4]UNITED. Here, plaintiff has failed to do so. Accordingly, it is

ORDERED that this motion by defendant UNITED for an Order, pursuant to CPLR 3212, granting summary judgment in favor of UNITED dismissing plaintiff's complaint as asserted against it, is hereby GRANTED.

COMPANION seeks partial summary judgment dismissing plaintiff's cause of action for accidental death benefits. Plaintiff alleges that she is entitled to recover the sum of $2,000,000.00 from defendants pursuant to an alleged accidental death benefit provision of the policy. However, COMPANION contends that the Insured never applied for, never qualified for, never paid for, and was never issued a policy or rider which provided accidental death benefits. In support thereof, COMPANION has submitted an affidavit of RICHARD EGGERT, a manager in the Life Underwriting Department of Mutual of Omaha Insurance Company, of which COMPANION is also a subsidiary. Mr. Eggert avers that the Insured did not apply to COMPANION for any accidental death benefits, as evidenced by a copy of the underlying application (see Exhibit "O" to COMPANION's moving papers). COMPANION argues that question "ten" of the application contains a box wherein an applicant may apply for additional benefits, including accidental death benefits ("ADB"), and that the answer to question "ten" is "NONE." Moreover, Mr. Eggert alleges that it is COMPANION's practice to issue accidental death coverage in the form of an Accidental Death Rider, which is not present in the policy at issue (see Exhibit "P" to COMPANION's moving papers). As such, COMPANION seeks summary judgment dismissing plaintiff's cause of action for accidental death benefits as without any factual basis.

In the case at bar, the Court finds that COMPANION has made a prima facie showing of entitlement to judgment as a matter of law with respect to plaintiff's cause of action seeking accidental death benefits in the amount of $2,000,000.00 (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, supra; Andre v Pomeroy, 35 NY2d 361, supra; Rodriguez v NY City Transit Auth., 286 AD2d 680, supra). The evidence submitted establishes that the face value of the insurance policy at issue is $1,000,000.00, without any additional accidental death benefit provision. The burden then shifted to plaintiff to establish, by competent evidence in admissible form, the existence of material issues of fact that would warrant a trial with respect to plaintiff's cause of action seeking accidental death benefits in the amount of $2,000,000.00. Here, plaintiff has failed to do so. Accordingly, it is

ORDERED that the branch of COMPANION's motion for an Order, pursuant [*5]to CPLR 3212, granting partial summary judgment dismissing plaintiff's cause of action for the additional $1,000,000.00 in accidental death benefits above the face value death benefit of the policy, is hereby GRANTED.

II.PAYMENT OF INSURANCE PROCEEDS INTO COURT

COMPANION also seeks to deposit the $1,000,000.00 insurance policy proceeds, plus accrued interest and less attorneys' fees, costs and disbursements, with the Court pursuant to CPLR 1006(f), so that the respective interests of the various beneficiaries and claimants can be determined. COMPANION admits that plaintiff was the designated primary beneficiary on the insurance policy, and that third-party defendant ZACHARY GIBIAN was the designated contingent beneficiary at the time of the Insured's death.

COMPANION alleges that plaintiff and third-party defendants have asserted adverse and conflicting claims to the policy death benefit, and therefore COMPANION seeks to pay the death benefit into Court in order to avoid exposure to multiple liability. COMPANION informs the Court that on December 13, 2006, third-party defendant and contingent beneficiary ZACHARY GIBIAN was convicted of second degree murder in connection with the death of the Insured. As a result, ZACHARY GIBIAN is currently serving twenty-five years to life in the custody of the New York State Department of Correctional Services. Accordingly, COMPANION argues that as a matter of law, ZACHARY GIBIAN may not receive any portion of the death benefit due and payable under the policy (see Riggs v Palmer, 115 NY 506 [1889]; In re Estate of Barrett, 224 AD2d 415 [1996]; Boatwright v Hartford Ins. Group, 64 AD2d 262 [1978]; In re Loud, 70 Misc 2d 1026 [Surr Ct, Kings County 1972]). However, COMPANION alleges that there remains the competing claims of plaintiff and the Insured's parents, and therefore COMPANION, as interpleader, seeks permission to deposit the $1,000,000.00 proceeds into Court and be discharged from any further liability with respect to the policy.

CPLR 1006 provides in pertinent part:

(f) Discharge of stakeholder. After the time for all parties to plead has expired, the stakeholder may move for an order discharging him from liability in whole or in part to any party. The stakeholder shall submit proof by affidavit or otherwise of the allegations in his pleading. The court may grant the motion and require payment into court, delivery to a person designated by the court or retention to the credit of the action, of the subject matter of the action to be disposed of in accordance with further order or the judgment. An order under subdivision (g) shall not discharge the stakeholder from liability to any claimant until an order granted under this subdivision is complied with. The court shall impose such terms relating to payment of expenses, costs and disbursements as may [*6]be just and which may be charged against the subject matter of the action. If the court shall determine that a party is entitled to interest, in the absence of an agreement by the stakeholder as to the rate of interest, he shall be liable to such party for interest to the date of discharge at a rate no greater than the lowest discount rate of the Federal Reserve Bank of New York for discounts for, and advances to, member banks in effect from time to time during the period for which, as found by the court, interest should be paid.

Here, the Court finds that COMPANION has met the requirements of a stakeholder, pursuant to CPLR 1006(f), to deposit the $1,000,000.00 insurance policy proceeds into court and be discharged from further liability (Sun Life Ins. & Annuity Co. of NY v Braslow, 2007 NY Slip Op 1861 [2d Dept]; cf. Inovlotska v Greenpoint Bank, 8 AD3d 623 [2004]; Royal Bank of Canada v Weiss, 172 AD2d 167 [1991]). Specifically, COMPANION admits that it issued a life insurance policy to the Insured on October 20, 2003, bearing policy number CL5077567, with the face value of $1,000,000.00. COMPANION further admits that the aforementioned policy was in effect on the date of the Insured's death, to wit: February 27, 2005, and that the death benefit of $1,000,000.00 is now due and owing by COMPANION. Plaintiff has commenced the instant action seeking payment of the proceeds, and does not allege any additional independent liability on the part of COMPANION. In their verified answer to amended third-party complaint dated January 22, 2007, the Insured's parents have asserted a claim to the death benefit proceeds under the policy by way of counterclaim against COMPANION and cross-claim against the co-third-party defendants. As such, there exists competing and adverse claims to the subject matter of this action. In view of the foregoing, it is

ORDERED that the branch of COMPANION's motion for an Order, pursuant to CPLR 1006(f), permitting COMPANION to deposit the insurance policy proceeds, plus accrued interest, with the Court and be discharged from any further liability, is hereby GRANTED. COMPANION shall deposit the entire $1,000,000.00 insurance proceeds with the Court, plus accrued interest, within thirty (30) days of service of the instant decision and Order with notice of entry. Only upon compliance with the instant Order will COMPANION be discharged from any further liability. COMPANION's application to deduct its attorneys' fees, costs, and disbursements, which total $32,943.86, from the insurance proceeds, will be addressed hereinafter.

Plaintiff has filed a cross-motion in opposition to COMPANION's motion and for an Order, pursuant to CPLR 2221, granting leave to renew its prior motion for summary judgment, which was decided by Order dated September 14, 2006 (Werner, J.). Upon renewal, [*7]plaintiff seeks an Order, pursuant to CPLR 3212, granting summary judgment in favor of plaintiff and against COMPANION in the amount of $1,000,000.00, plus interest from May 10, 2005. Plaintiff seeks renewal based upon the December 13, 2006 conviction of third-party defendant ZACHARY GIBIAN of second degree murder in causing the death of the Insured. In their verified answer dated January 22, 2007, third-party defendants allege that plaintiff was involved in the death of their son, the Insured, and therefore plaintiff is not entitled to the insurance proceeds. Third-party defendants allege that in such a situation, the insurance proceeds would be payable to the Estate of the Insured, and as the Insured's parents, they would have rights superior to all other claimants under New York's intestacy laws. However, plaintiff argues that any testimony in the criminal trial that plaintiff caused the death of the Insured was specifically rejected by the jury. Applying the principles of collateral estoppel, plaintiff argues that summary judgment must be granted to plaintiff as the issue of who was responsible for the death of the Insured, i.e. ZACHARY GIBIAN, has already been fully litigated and decided. In support thereof, plaintiff has annexed an affidavit of plaintiff which confirms her position that she did not cause the death of the Insured. Moreover, plaintiff informs the Court that as of April 23, 2007, no charges have been filed against plaintiff relative to the death of the Insured.

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e]; Hunt v Odd Job Trading, 2007 NY Slip Op 7662 [2d Dept]; Bank of Am., N.A., United States v Friedman, 2007 NY Slip Op 7646 [2d Dept]).

In order to invoke the doctrine of collateral estoppel, two well-settled requirements must be satisfied: "First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue, or one in privity with a party, must have had a full and fair opportunity to contest the prior determination" (Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]). The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result (see Buechel v Bain, 97 NY2d 295 [2001]; Altegra Credit Co. v. Tin Chu, 2006 NY Slip Op 3826 [2006]). Moreover, in limited circumstances, a particular issue expressly or necessarily decided in a criminal proceeding may be given preclusive effect in a subsequent affected civil action (see Allstate Ins. Co. v Zuk, 78 NY2d 41 [1991]; In re Nassau Ins. Co., 78 NY2d 888 [1991]; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Vavolizza v Krieger, 33 NY2d 351 [1974]).

Here, plaintiff argues that the Insured's parents are in privity with the Insured and the Estate of the Insured, and therefore are precluded from litigating the issue of whether plaintiff or ZACHARY GIBIAN caused the death of the Insured, as this issue has already been decided in the criminal proceeding upon the conviction of ZACHARY GIBIAN. Plaintiff further argues that the guilty verdict in the criminal trial leads to the conclusion that the jury rejected the defense that plaintiff caused the death of the Insured. Thus, plaintiff contends that preclusive [*8]effect must be given to the jury's finding as the issue of who caused the death of the Insured has already been decided. In addition, plaintiff alleges that there was a full and fair opportunity to contest the prior proceeding, as the District Attorney represented the interest of the Insured in the criminal proceeding, and plaintiff alleges that the Insured's parents are in privity with the Insured. Furthermore, plaintiff submits that the Insured's parents assisted in the prosecution of ZACHARY GIBIAN, at which time they had an opportunity to come forth with any evidence implicating plaintiff in the crime. Plaintiff alleges that they did not.

In opposition to plaintiff's motion, third-party defendants initially argue that plaintiff's motion does not meet the criteria of a motion to renew pursuant to CPLR 2221. Third-party defendants allege that although the conviction of ZACHARY GIBIAN occurred after the Order of September 14, 2006 (Werner, J.), the Court had addressed the pending charges against ZACHARY GIBIAN as well as the possibility of his conviction for the crime. Consequently, third-party defendants contend that plaintiff's motion fails to meet the standard for a motion to renew under CPLR 2221, and should be denied on that basis.

Further, third-party defendants argue that the fact ZACHARY GIBIAN has been convicted in the murder of the Insured does not lead to the conclusion that no other person was also responsible for his death. Third-party defendants allege that the jury in the criminal proceeding was not asked to render a verdict concerning whether plaintiff committed the murder (see Verdict Sheet in criminal trial annexed as Exhibit "C" to Third-Party Defendant's Affirmation in Opposition), and the record of those proceedings is devoid of any jury finding that plaintiff was or was not involved in causing the death of the Insured. Moreover, third-party defendants argue that collateral estoppel does not bar third-party defendants from raising the issue of plaintiff's culpability in this action, as this issue has not been fully litigated or decided. Third-party defendants remind the Court that charges have not been brought against plaintiff relative to the death of the Insured, and plaintiff did not testify at the criminal trial of ZACHARY GIBIAN. While plaintiff has submitted an affidavit in which she denies causing the death of the Insured, third-party defendants argue that her affidavit is silent with respect to her knowledge of ZACHARY GIBIAN's intention to commit the crime, and/or her assistance and complicity in carrying out the crime.

In addition, third-party defendants contend that they were not in privity with the District Attorney relative to the criminal trial, as the District Attorney represents the People of the State of New York, and not the victim or the victim's family. Therefore, third-party defendants allege that they were not able to direct or control the District Attorney in his prosecution of the case. Third-party defendants also argue that the issues are different in the criminal case and the instant action. In the criminal case, the issue before the jury was whether ZACHARY GIBIAN was guilty beyond a reasonable doubt in causing the death of the Insured, while the issue raised by third-party defendants in the instant action is whether plaintiff, by a preponderance of the credible evidence, assisted with or caused the death of the Insured. As such, third-party defendants submit that the latter issue has not been litigated to date, and that collateral estoppel would deny third-party defendants their right to litigate the issue of plaintiff's [*9]involvement in their son's death.

Third-party defendants have submitted, among other things, an excerpt from the transcript of ZACHARY GIBIAN's criminal trial which contains testimony from November 30, 2006 and December 1, 2006. A review of the transcript reveals that ZACHARY GIBIAN testified under oath that plaintiff committed the murder of the Insured (T. 45, line 13 through T. 47, line 7; T. 286, line 24 through T. 287, line 10),^[FN1] and that he was only admitting to the crime to "protect" his mother (T. 235, line 21-24; T. 287, line 1-10; T. 293, line 8-11). ZACHARY GIBIAN also testified that plaintiff told him that she would come forward and admit to the authorities that she was the one responsible for the murder (T. 236, line 14-19; T. 266, line 4-6; T. 316, line 5-12). The transcript was certified on December 4, 2006 by the court reporter as a true and correct transcript of the court proceedings held on November 30, 2006 and December 1, 2006 (T. 347).

Plaintiff does not object to third-party defendants' reliance on the transcript of the testimony of ZACHARY GIBIAN, but instead argues that the jury specifically rejected ZACHARY GIBIAN's testimony, and that third-party defendants have offered no other evidence which suggests that plaintiff caused the death of the Insured. The Court is mindful that in the context of a motion for summary judgment, the credibility of the parties is not an appropriate consideration for the court (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338 [1974]), and statements proffered in opposition to the motion must be accepted as true (Patrolmen's Benevolent Assn. v City of New York, 27 NY2d 410 [1971]; Cohn v Lionel Corp., 21 NY2d 559 [1968]; Cochrane v Owens-Corning Fiberglass Corp., 219 AD2d 557 [1995]). It is well-settled that the function of a court entertaining a motion for summary judgment is one of issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Wiener v Ga-Ro Die Cutting, 104 AD2d 331 [1984], affd 65 NY2d 732 [1985]), and any conflict between ZACHARY GIBIAN's testimony and plaintiff's allegations merely presents an issue of credibility for resolution at trial (Cohn v Lionel Corp., 21 NY2d 559, supra; see also Patrolmen's Benevolent Assn. v City of New York, 27 NY2d 410, supra).

It is also well-settled that a beneficiary of a life insurance policy forfeits any claim she may have if she intentionally kills the insured (see Riggs v Palmer, 115 NY 506, supra; In re Estate of Barrett, 224 AD2d 415, supra; Boatwright v Hartford Ins. Group, 64 AD2d 262, supra; In re Loud, 70 Misc 2d 1026, supra; see also Metropolitan Life Ins. Co. v Marini, 1998 US Dist LEXIS 15760 [SDNY 1998]; Mendez Billidor v Bd. of Trustees, 709 F Supp 329 [EDNY 1989]). The essential element of this principle is that a wrongdoer shall not profit from her intentional misdeeds. Moreover, a beneficiary's disqualification does not require a criminal conviction (Metropolitan Life Ins. Co. v Marini, 1998 US Dist LEXIS 15760, supra; Doe v American Gen'l Life Ins. Co., 139 Misc 2d 80 [Sup Ct, Bronx County 1988]). Where a [*10]beneficiary has not been convicted of a crime or even arrested, forfeiture will not occur unless a civil action establishes that the beneficiary intentionally killed the insured (In re Estate of Barrett, 224 AD2d 415, supra; Doe v American Gen'l Life Ins. Co., 139 Misc 2d 80, supra). In the absence of a conviction, the facts must be established through the ordinary means of testimony at trial (Doe v American Gen'l Life Ins. Co., 139 Misc 2d 80, supra).

In the instant matter, plaintiff has not been convicted nor even arrested. While she may be a suspect, she is presumed innocent until proven guilty. The Court notes that there is no statute of limitations for murder or any class A felony (CPL 30.10). As such, plaintiff would not be disqualified from receiving the insurance proceeds at issue unless it is established at a trial de novo of this action by a preponderance of the credible evidence that plaintiff intentionally and feloniously took the life of the Insured (see Doe v American Gen'l Life Ins. Co., 139 Misc 2d 80, supra; In re Stanley, 184 Misc 748 [Surr Ct, Orange County 1945]; see also Shrader v Equitable Life Assurance Soc., 20 Ohio St 3d 41 [1985]; Harper v Prudential Ins. Co., 233 Kan 358 [1983]; Commercial Travelers Mut. Acci. Asso. v Witte, 406 SW2d 145 [Ky 1966]).

Furthermore, the Court finds that the doctrine of collateral estoppel does not bar the claims raised by the third-party defendants herein. Despite plaintiff's argument to the contrary, the conviction of ZACHARY GIBIAN does not conclusively establish that plaintiff was not complicit in the death of the Insured. The fact that ZACHARY GIBIAN was convicted in causing the death of the Insured does not lead to the conclusion he was the only person responsible for the crime, to the exclusion of all others. Accordingly, it cannot be said that the issue of whether plaintiff was involved in the murder of the Insured was necessarily decided in the criminal action and decisive of the instant action, or that the conviction of ZACHARY GIBIAN eliminates all questions of fact in the instant action with respect to plaintiff's possible involvement in the murder. In view of the foregoing, it is

ORDERED that this cross-motion by plaintiff for an Order, pursuant to CPLR 2221, granting leave to renew her prior motion for summary judgment, decided by Order dated September 14, 2006 (Werner, J.), is hereby GRANTED. Upon renewal, plaintiff's motion for an Order, pursuant to CPLR 3212, granting summary judgment in favor of plaintiff and against COMPANION in the amount of $1,000,000.00, plus interest from May 10, 2005, is hereby DENIED.

Finally, COMPANION seeks to deduct its attorneys' fees, costs, and disbursements, which total $32,943.86, from the insurance proceeds. The Court has discretion to award expenses, costs, and disbursements "as may be just" to the stakeholder upon discharge in an interpleader action (CPLR 1006[f]). COMPANION may tax to the clerk of the court its costs and disbursements in this action. However, any other expenses, pursuant to CPLR 1006(f), including attorneys' fees which are recoverable pursuant thereto, will have to be approved by the Court. Accordingly, a hearing shall be held at the time of trial at which COMPANION must justify the reasonableness of its attorneys' fees incurred in connection with the instant interpleader action, and to determine how the fees shall be apportioned (CPLR 1006[f]; Lincoln [*11]Life & Annuity Co. v Caswell, 31 AD3d 1 [2006]; Fischbein, Badillo, Wagner v Tova Realty Co., 193 AD2d 442 [1993]; Rice v Chanas, 191 Misc 2d 813 [2002]).

The foregoing constitutes the decision and Order of the Court.

Dated: October 16, 2007

HON. JOSEPH FARNETI

Acting Justice Supreme Court