By notice of cross- motion, sequence number four, filed on July 6, 2007, defendant Anthony Moreno (Moreno) moves this court pursuant to CPLR §§ 2218, 3211(c), 4001 and 4317(b) for an order of reference, setting the matter down for a framed issue hearing before a referee to determine entitlement to the proceeds of the Allstate Life Insurance Company of New York (Allstate) policy of the decedent Karen King. Moreno also seeks an order pursuant to CPLR §3126 precluding defendant Gabrielle Figari-Ali (Figari-Ali) from relying on expert witness reports based on her failure to exchange said reports in response to Moreno's discovery demands.

By notice of motion, sequence number five, filed on August 9, 2007, defendant Figari-Ali, moves this court, pursuant to CPLR §3212, for an order of summary judgment declaring her the sole beneficiary of her sister Karen E. King's life insurance policy.

Allstate is a corporation duly organized and existing under the laws of the State of New York and in the business of selling life insurance. Moreno is a resident of Kings County and the purchaser of an Allstate term life insurance policy. Karen E. King was also the purchaser of an Allstate universal life insurance policy which designated Moreno as a beneficiary. On December 26, 2003, Karen E. King passed away. Figari-Ali is Karen E. King's sister and a resident of Trinidad, West Indies. Figari-Ali was notified that her sister had named her as the beneficiary of her universal life insurance policy. The purported change replaced Moreno with Figari-Ali as beneficiary. Both defendants brought cross-claims against each other and counterclaims against Allstate with each claiming entitlement to the proceeds of Karen E. King's universal life policy.

Defendant Figari-Ali's motion papers consist of her affidavit, her attorney's affirmation [*2]and eight annexed exhibits. The notice of motion is dated July 31, 2007. Exhibit A is Allstate's interpleader summons and complaint.^[FN1] Exhibit B is Figari-Ali's verified interpleader answer and cross-claim. Also included are a notice for discovery and inspection, a notice to take a deposition and a demand for addresses of appearing parties purportedly issued by Moreno to Figari-Ali's counsel. Exhibit C is this court's order issued May 25, 2005, granting Allstate's interpleader, discharging its liability and directing payment of the policy to be held in escrow pending the resolution of the defendants' respective claims. Exhibit D is an affidavit from Allstate's claims representative who references eight exhibits annexed to the affidavit. Exhibit E is the deposition transcript of Frank DiBenedetto, a former Allstate insurance agent. Exhibit F is a copy of Allstate's internal manual pertaining to the procedure for changing insurance beneficiaries. Exhibit G and H are the deposition transcripts of Moreno and Figari-Ali.

Defendant Moreno's cross-motion papers consist of his affidavit, his attorney's affirmation, and correspondence from Moreno's counsel containing annexed exhibits A through F. (The correspondence was characterized as a letter motion by counsel). The notice of cross motion is dated July 3, 2007. Exhibit A is a notice for discovery and inspection. Exhibit B contains a Fedex shipment tracking report, Moreno's response to Figari-Ali's notice for discovery and inspection, and two letters from Sandy Stevens. Exhibit C is a

facsimile transmission from Moreno's counsel. Exhibit D is a facsimile transmission and correspondence from Moreno's counsel, followed by a two pages of excerpts of Figari-Ali's examination before trial transcripts. Exhibit E is a facsimile transmission and correspondence from Figari-Ali's counsel. Exhibit F is an excerpt of the transcript of the examination before trial of Frank DiBenedetto.

Defendant Moreno submitted supplemental papers in support of its cross motion and in opposition to Figari-Ali's motion. These papers, dated August 29, 2007, consist of an affirmation of Moreno's counsel, an affidavit of Sandy Stevens and a number of exhibits that Ms. Stevens refers to in her affidavit.

Defendant Figari-Ali replied to Moreno's cross motion by an affirmation of her counsel dated September 5, 2007.

On March 24, 2004, Allstate commenced this interpleader action by filing an interpleader summons and complaint with the Kings County Clerk's Office. Issue was joined by interpleader defendants Moreno and Figari-Ali's answers filed respectively on July 14 and August 24, 2004.

Karen King was the holder of an Allstate insurance policy number 701731448. This policy was kept in full force and effect through the date of her death on December 26, 2003.

Allstate issued a policy of joint decreasing term insurance to Karen E. King and Anthony [*3]Moreno, with a starting date of May 6, 1995 and bearing policy number 766706352. At the time this policy was issued, the beneficiaries were Anthony Moreno and Karen E. King, respectively.

Subsequently, policy No. 766706352 was converted into separate policies of universal life insurance. On or about April 21, 1997, Allstate received an application for a separate policy of universal life insurance with a face amount of $100,000.00, plus a term rider in the amount of $51,202.00 for a total death benefit of $151, 202.00. The number for said policy was 701731431. Allstate believed the application was signed by Moreno, as insured, and by both Moreno and Karen King, as owners. By application dated April 21, 1997, Karen E. King also applied for a separate policy of universal life insurance. The face amount of the policy was in the amount of $50,000.00 plus a term rider in the amount of $101,202.00, for a total death benefit of $151,202.00. The number for said policy was 701731448. Allstate believed the policy was signed by Karen King, as insured, and by both Moreno and Karen King as owners.

When Policy No. 701731448 was initially issued, the beneficiary was Moreno. On or about October 31, 2003, Allstate received a change of beneficiary request form for policy number 701731448, which Allstate believed was signed by Karen King and which sought to replace Figari-Ali as the new primary beneficiary in place of Moreno. By correspondence dated September 2, 2003 to Karen E. King, Allstate rejected Karen E. King's beneficiary request form as submitted because it did not contain a social security number for Figari-Ali. After subsequent conversations with Allstate's Legal Department, it was determined that the beneficiary change should have been accepted on the basis that the insured had substantially complied with the rules for a beneficiary designation change. Allstate learned that Karen King's new beneficiary, Figari-Ali was a citizen of Trinidad, where social security numbers are not assigned.

Allstate approved Karen King's beneficiary change form subsequent to her death on December 26, 2003. A claim for payment of life insurance benefits was submitted by Figari-Ali on January 20,2004.

On or about February 4, 2004, prior to making payment of the benefits to Figari-Ali, Moreno verbally advised Allstate's representatives that he questioned the validity of the beneficiary change form purportedly signed by Karen King shortly before her death.Allstate subsequently received a written statement from Moreno claiming that the conversion of the decreasing joint-term policy was incomplete and should not be enforced due to the alleged forgery of his and Karen King's signatures on one of the policy conversion applications.

CPLR § 2218. Provides as follows:

Trial of issue raised on motion. The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee. If the issue is triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issue. Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury. An order under this rule shall specify the issue to be tried.

CPLR § 3212 (c) provides for an immediate trial under the following circumstances.

If it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages, or if the motion is based on any of the grounds [*4]enumerated in subdivision (a) or (b) of rule 3211, the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion, before a referee, before the court, or before the court and a jury, whichever may be proper.

CPLR § 4317(b) provides the following circumstances when reference to determine may be used without the consent of the parties:

On motion of any party or on its own initiative, the court may order a reference to determine a cause of action or an issue where the trial will require the examination of a long account, including actions to foreclose mechanic's liens; or to determine an issue of damages separately triable and not requiring a trial by jury; or where otherwise authorized by law.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). Once the moving party has established entitlement to summary judgment, to defeat the motion, the opposing party must raise triable issues of fact (Gravina v. Wackschal, 255 AD2d 291 [2nd Dept 1991]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the sufficiency of the opposing papers (Ayotte v. Gervasio, 186 AD2d 963 [3rd Dept. 1992]).

Where the insured lawfully exercises his or her right to change the beneficiary of a policy, the original beneficiary is deprived of his or her interest in the policy (Stone v. Metropolitan Life Ins. Co., 12 NY2d 487 [1963]; In re: Robus' Estate, 263 AD 1053 [4th Dept 1942]. In the absence of a further authorized designation of another person as beneficiary by the time of the insured's death, the substituted beneficiary is entitled to the proceeds of the policy.(Lynch v. Prudential Ins. Co of America, 258 AD 742 [2nd Dept 1939]).

Defendant Figari-Ali has not made a prima facie showing of entitlement to the proceeds of her sister Karen E. King's universal life insurance policy with Allstate. The affidavit of Judy Laxer, a claim representative of Allstate, her own affidavit and deposition transcripts, and the deposition of Frank DiBenedetto establishes a prima facie showing that Karen King purportedly notified Allstate of her intention to change the beneficiary of the proceeds of policy in question from Moreno to Figari-Ali and that she completed the necessary steps to do so (see generally, Lincoln Life Ins. and Annuity Company of New York v. Caswell, 31 AD3d1 [1st Dept 2006]).

However, Moreno's deposition transcript is annexed as part of Figari-Ali's motion papers. Moreno testified that he lived romantically with Karen E. King for over a decade and that he shared a joint bank account and joint mortgage obligation with her. He claims that the signature on the change of beneficiary form is not hers. Moreno's deposition testimony raises an issue of fact as to whether the signatures of Karen E. King and Anthony Moreno contained on the form which converted Karen E. King's policy from a joint term to a universal life policy were forged. Moreno's deposition testimony also raises an issue a fact as to whether Karen E. King's signature on the change of beneficiary claim form was forged.

Moreno's cross-motion papers goes one step further by including the affidavit of Sandy Stevens, an expert document examiner. She renders an opinion that the signature of Karen E. [*5]King on the subject documents are forged as compared against other purported templates of her signature. While the court is troubled by Sandy Steven's disorderly presentation and the apparent lack of a sworn attestation that the signature templates used to compare Karen E. King's signature were genuinely hers, the presentation is sufficient to demonstrate that a genuine triable issue of forgery may exist. Under these circumstances it is more prudent to deny Figari-Ali's motion for summary judgment without prejudice to renew after completion of discovery. This will give the cross-claimants an opportunity to examine the template used by Sandy Stevens and to properly prepare a renewed summary judgment motion.

The court now turns to Moreno's cross-motion for an order of reference. As unequivocally set forth in CPLR §4317(b) the court needs the consent of both parties to order a reference to determine a cause of action except in certain limited circumstances. Consent is not needed in a trial that will require the examination of a long account, including actions to foreclose mechanic's liens; or to determine an issue of damages separately triable and not requiring a trial by jury; or where otherwise authorized by law. Moreno does not have Figari-Ali's consent to an order of reference and has not asserted any law which authorizes this court do so without said consent. Consequently, the order of reference is denied without prejudice. Moreno may renew the application if he procures Figari-Ali's consent to an order of reference.It is noted that neither Figari-Ali nor Moreno demanded an answer to the their cross- claims against each other. Pursuant to CPLR §3011 a cross-claim requires an answer only if the pleading containing the cross-claim demands one. In the absence of a demand, the allegations of the cross-claim are deemed denied (see generally, Siegel's New York Practice 4th Edition § 227, Cross-Claims).

Therefore, issue is joined on the cross-claims and the court may order a summary trial on the factual issue of the authenticity of Karen E. King's signature on the change of beneficiary form pursuant to either CPLR §§ 2218 or 3212(c). However, in light of Moreno's claim that Figari-Ali has not provided demanded discovery pertaining to handwriting experts and Moreno's flawed presentation from Sandy Stevens, his own document examiner, it is apparent that further discovery is necessary. The court declines at this time to order an accelerated factual hearing.

The court now turns to Moreno's cross-motion for an order precluding Figari-Ali from using expert witness reports in the instant motion and cross-motion. The motion was made as a precaution and in anticipation that Figari-Ali would use such evidence in a reply to Moreno's cross-motion. CPLR §3126 provides for penalties for refusal to comply with an order to disclose or wilfully fails to disclose information which the court finds ought to have been disclosed. Here, Moreno is not claiming that Figari-Ali has disobeyed a court order. Rather, he is claiming that Figari-Ali did not comply with Moreno's demand for discovery pertaining to hand writing experts. The court notes that Figari-Ali did not use an affidavit of a hand writing expert in the instant motion and cross-motion. There is therefore no need to address preclusion of such evidence for the purposes of the instant motion. To the extent that Moreno is seeking preclusion of such evidence beyond the instant motions, the request is premature and is denied without prejudice to renewal on a new showing of entitlement.

The foregoing constitutes the decision and order of this court. [*6]

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J.S.C.