This action is brought by Laurence L. Leff, as the administrator of Eve Lewis' estate ("Estate") and individually ("Leff"). Eve Lewis ("Mrs. Lewis" at times "annuitant/owner") is Leff's deceased mother. Leff is self represented in this action. Although the complaint does not contain clearly delineated or identified causes of action, it appears that Leff seeks a declaratory judgment by this court that the defendant, TIAA-CREF Life Insurance Company ("TIAA-CREF"), must pay, transfer or "roll over" the proceeds of his deceased mother's Personal Annuity Contract ("death benefits") into an Individual Retirement Account ("IRA") in Leff's personal name, that so he can avoid certain adverse tax consequences and provide income security for himself in the future.

Defendant has answered the complaint and now moves for summary judgment dismissing the complaint. The note of issue has not yet been filed. Since any party may move for summary judgment after issue has been joined, and this motion complies with CPLR 3212[a], it will be considered on the merits. The court's decision and order is as follows:

Arguments Presented

Mrs. Lewis completed an application for a Personal Annuity Contract ("contract") with [*2]defendant on January 30, 1994. On the form Mrs. Lewis could have designated an individual by name and relationship as the beneficiary of death benefits upon her death. Instead, Mrs. Lewis wrote in "Estate of Eve Lewis (my estate)." Leff contends he is Mrs. Lewis' only living beneficiary because she had no other children, she was divorced and did not remarry, and her parents are deceased. Mrs. Lewis was 80 years old at the time of her death.

According to Leff, when he learned of his mother's death and that the death benefits that were to be paid into the Estate were almost $450,000, he began a dialog with employees of defendant to see if he could have the death benefits directly "rolled over" into a personal IRA he would establish in his own name, rather than the Estate, so he could avoid the payment of estate taxes. Plaintiff states defendant's employees confirmed it could be done. Thereafter, however, defendant's attorneys wrote him a letter told him it could not be done and the money had to paid into the Estate. Thus, Leff contends defendant "reneged" on a promise and that such promise is also proof that what he wants to do can, in fact, be done.

Defendant argues that even if Leff can prove that any of these conversations took place and he was given that (erroneous) advice, the defendant is not bound by those statements or "agreement." Defendant argues that there is no contract between itself and Leff - there is only the contract that defendant had with the now deceased annuitant/owner of the annuity account. Thus any change to the beneficiary of that account had to be effectuated by Mrs. Lewis before she died. Since the contract was never amended, changed or modified by her in writing, defendant's obligation under the contract is completed and discharged by paying the death proceeds to the Estate.

Defendant argues further that the oral modification that Leff relies on, even if proved at trial, violates the Statute of Frauds because the contract has a provision against oral modifications (GOL §15-301). Thus, even if someone did notify Leff that the death benefits could and would be rolled over into an IRA in his individual name, by passing the Estate, that agreement" or advice is completely unenforceable and was nothing more than a mistake. Moreover, any argument by Leff that the Estate can "elect" to pay the death benefits to someone else (i.e. Leff, individual), cannot be effectuated until after the money passes through the estate. Defendant contends that even if Leff had been named individually as the designated beneficiary, the funds would not be eligible for a "roll over" into an IRA or retirement plan, because Mrs. Lewis's contract was for a non-qualified annuity account.

Certain provisions of particularly relevant to the parties' dispute. Paragraph 3 of the contract provides that:

"If you die before the annuity start date and if you named your estate as beneficiary, none of the beneficiaries you named is alive at the time of your death, or you never named a beneficiary, the death benefit will be paid to your estate in one sum."

Paragraph 3 also defines who a beneficiary is. "Beneficiaries" are persons you name in a satisfactory form . . .to ... A) receive the death benefit . . . or B) become the owner and receive any benefits due as owner . . ." Further below that section, the contract provides that where the owner/annuitant of the contract has named the "estate as beneficiary, none of the beneficiaries you named is alive at the time of your death, or you never named a beneficiary, the death benefit will be paid to your estate in one sum." [*3]

Paragraph 6 provides that the beneficiary is the "death benefit payee" and paragraph 43 describes the methods the payment of the death benefit can be made. It can be in a "lump sum," or in a "one life annuity" which is payable until the "death benefit payee dies," or in a "fixed period annuity" which is paid over a guaranteed number of years. Under the fixed period annuity, if the death benefit payee dies before the guaranteed period is completed, the payments continue until the end of that period and then cease.

Paragraph 44 of the contract also regulates how distributions are made upon the death of the "owner" of the annuity:

"[If] you die before the annuity starting date, TIAA-CREF Life will pay the death benefit in accordance with the requirements of Section 72[s] of the Internal Revenue Code of 1986 as amended. Thus, the death benefit must be distributed within five years of the death of the owner. However, if your beneficiary is a natural person and payments begin within one year of death, and within 60 days of the date we receive due proof of your death, the distribution may be made over the lifetime of your beneficiary or over a period not to exceed your beneficiary's life expectancy."

In opposition, Leff rests mostly on the facts alleged in the complaint and amended complaint (the effect of the amendment is discussed, infra) referring to statements made to him by employees of defendant and various tax professionals who have reportedly assured him that what he seeks to accomplish is perfectly legal and can be done. None of these persons have provided a sworn affidavit to support Leff's position.

Leff argues further that he detrimentally relied on defendant's prior statements, that it would effectuate his instructions about a roll over, and therefore, defendant should now be required to fulfill those promises. Leff also contends he is entitled to interest on the death benefits and an accounting because the defendant may have delayed in taking certain actions which affected their value.

Discussion and Court's Decision

On a motion for summary judgment, the movant has to prove its prima facie case such that it would be entitled to judgment in its favor, without the need for a trial (CPLR § 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Mrs. Lewis designated her Estate as the beneficiary of the death benefits under her annuity contract with defendant. She did not change that designation before her death. Like any other agreement, the annuity contract is to be enforced in accordance with its terms. W.W.W. Associates, Inc. v. Giacontieri, 77 NY2d 157 (1990). As per the express terms of Mrs. Lewis' annuity contract with the defendant, the defendant's obligation is to pay the death benefits to her designated beneficiary, i.e. her Estate.

Although Leff would like to find some way to avoid paying estate tax on the death benefits, and he claims the money is all going to him anyway since he is the sole beneficiary of his mother's estate, the court cannot, will not and must not change the deceased's contract with the defendant. This is exactly what Leff is asking the court to do by asking that the court ignore [*4]Mrs. Lewis's designated beneficiary.

As the administrator of the Estate, it is up to Leff to receive claims against the Estate, pay creditors and then distribute all remaining property in accordance with any applicable laws. Defendant has no obligation to undertake any of the actions that Leff insists were promises made to him by defendant's employees. Nor is it relevant that Leff has consulted various tax professionals who have reportedly come up with creative ways to have the death benefits bypass the Estate. Leaving aside the matter that all these statements are hearsay, and therefore, not evidence in admissible form sufficient to establish a material issue of fact for trial, the defendant is under no obligation to do anything more than it is required to do under its contract with the annuitant/owner. Leff, individually, is not the named beneficiary under the contract and the proceeds of the annuity cannot be paid to him personally or into an account for his benefit without first going to the Estate.

There is no ambiguity in the contract, as Leff claims. The contract uses the term beneficiary when referring to an individual who has a "life." The Estate has no "life." The language in paragraph 3 unmistakably provides that if the annuitant/owner dies before the annuity start date and "if you named your estate as beneficiary, none of the beneficiaries you named is alive at the time of your death, or you never named a beneficiary, the death benefit will be paid to your estate in one sum." Mrs. Lewis named her Estate as the beneficiary; no individual beneficiaries were named. Therefore, defendant's only obligation to fulfill is to pay the lump sum of the death benefit to the Estate.

Other arguments by Leff, that what he is seeking to do is, in fact, legal, misses the point. The legality or illegality of what he is trying to accomplish is not before the court to decide. Rather, this is simply an issue of contract enforcement. Despite Leff's claim, that the contract is ambiguous, there are no ambiguities he has identified, and therefore, no material triable issues of fact.

Leff's arguments about detrimental reliance are misplaced. There can only be detrimental reliance if the plaintiff's interpretation of the agreement at issue is reasonable and consistent with its plain meaning, giving effect to all of its terms" (Bank of New York v. Murphy, 230 AD2d 607 [1st Dept.1996]). Leaving aside the issue that Leff never entered into any kind of contract with the defendant, despite promises by its employees that the money could be "rolled over" into an IRA, Leff's interpretation of the annuity contract is not reasonable, but fueled by an interest in obtaining a better, or different, result than the contract obligates the defendant to provide. Thus, even if plaintiff can prove at trial that he changed his position, relying on those statements, his reliance was unreasonable given the unambiguous provisions of the contract requiring the payment of the death benefits to the Estate, not him personally (Meyercord v. Curry, 38 AD3d 315 [1st Dept 2007]).

Leff argues that even if summary judgment is granted to the defendants, there is other relief sought in paragraphs 57 and 58 of the "original" complaint. Leff served an "amended" complaint which only added some facts. It does not, however, restate all the relief in the original complaint. Although by its very terms an amended complaint supercedes the original complaint (Halmar Distributors, Inc. v. Approved Mfg. Corp., 49 AD2d 841 [1st Dept 1975]), this is not raised by the defendant and both parties have apparently treated the original and amended complaint as a single "amended complaint." Therefore, the court will consider whether those [*5]two remaining claims survive defendant's motion for summary judgment..

Without elaborating, Leff argues that he does not understand why the disbursements to the Estate are $400,759.91 although he received a notice (Substitution Form 712) that the benefits had a date of death value of $449,788.12. He also demands interest from November 2007, because he believes the defendant "delayed." Defendant has not raised either claims in its motion for summary judgment. In any event, even assuming they are swept up in defendant's catchall request for summary judgment, Leff has raised material issues of fact to defeat defendant's motion.

Based upon the foregoing, defendant's motion for an order granting it summary judgment dismissing the complaint is granted as to the action for a declaratory judgment vís-a-vís payment of the death benefits to the Estate. Plaintiff has failed to defeat the motion by raising any material triable issues of fact. Defendant' obligation to pay death benefits is fulfilled by paying the proceeds to the Estate.

Defendant's motion for summary judgment is, however, denied as to claims set forth in paragraph 57 and 58 of the complaint.

Conclusion

Defendant's motion for summary judgment is granted in part and denied in part, as set forth, and for the reasons provided, in the court's decision.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

This case will next appear on the court's calendar on January 14, 2010 at 9:30 a.m. No further notices will be sent.

This constitutes the decision and order of the court.

Dated:New York, New York

November 19, 2009So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C.