It is ORDERED that this application is disposed of as follows:

Plaintiff commenced this action for a declaratory judgment to determine the rightful beneficiary of a life insurance policy and owner of the related insurance proceeds.^[FN1] Plaintiff has moved for summary judgment and Defendant has cross-moved to dismiss Plaintiff's summons and complaint and to amend its prayer for relief.

On or about August 28, 1987, Plaintiff's father, William B. Kliamovitch ("William"), purchased a $250,000. life insurance policy,^[FN2] ("the policy"), from Companion Life Insurance Company ("Companion"). William initially named his son, the Plaintiff, as the sole beneficiary of this policy. Paragraph 17 of the policy allowed William to "...change the beneficiary while the Insured [he] is alive unless this right has been given up. To do this, send a written request to us [Companion]." Upon learning of William's death in October of 2005, Companion contacted Defendant, William's [*2]wife,^[FN3] regarding distributing the policy proceeds to her. Plaintiff alerted Companion of his objections to this proposed distribution, resulting in the 2007 interpleader action in Nassau County as well as this action. See supra n. 1.

In support of his claims, Plaintiff has submitted a Policy Change Request Form ("1996 changes") in which William made the following changes regarding the policy beneficiaries: William R. Kliamovich, his father, would receive 15 percent, Plaintiff would receive 50 percent, and Kyle Adam Kliamovich, his and Defendant's son, would receive 35 percent. Plaintiff has also furnished a letter dated July 29, 1996 ("July 1996 letter") from Ernest B. Johnson, President of Companion, confirming these changes. William checked off the "Irrevocable Beneficiary" box on the 1996 Policy Change Request Form, which stated,

"[t]his policy will be endorsed to show that no significant changes, including the change of beneficiary, may be completed without the consent of the present beneficiary."

Plaintiff contends that under the terms of the policy and as a result of the 1996 changes, he is an irrevocable beneficiary and an indispensable party to any subsequent change in beneficiary. Plaintiff testified that he has not consented to any change of beneficiary and a review of the policy file is devoid of any consent. Plaintiff alleges that all changes to the policy after the 1996 changes are void based upon his lack of consent.

In response to Plaintiff's claims, Defendant disputes the validity of the 1996 changes and claims entitlement to the policy proceeds pursuant to a change form dated May 15, 1998 which made Defendant the sole policy beneficiary.^[FN4] In support of her claims regarding the 1996 changes, Defendant highlights the absence of a second page to the Policy Change Request Form related to the 1996 changes. This page would have been dated and contained William's signature. Defendant also notes that the July 29, 1996 letter from Ernest B. Johnson was not in the Companion file. Defendant claims these documents were altered or produced for purposes of the current litigation.

It is well understood that 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 to eliminate any material issues of fact from the case. Alvarez v. Prospect Hosp., 68 NY2d 320; Zuckerman v. City of New York, 49 NY2d 557. Once the movant has made a prima facie showing of his entitlement to judgment as a matter of law, the party opposing the motion must then demonstrate by admissible evidence the existence of triable issues of fact. Cohn v. Levy, 284 AD2d 293 (2d Dep't, 2001).

In the case of R/S Associates v New York Job Development Authority, 98 NY2d 29; 2002 the Court of Appeals stated that it has long adhered to the "...sound rule in the construction of contracts, that where the language is clear, unequivocal and unambiguous, the contract is to be interpreted by its own language". Springsteen v Samson, 32 NY 703, (1865) [citing [*3]Rodgers v Kneeland, 10 Wend 218 (1833)]).

While an insured may change the beneficiary of a life insurance policy where the right is reserved therein, an insured may waive this right and a beneficiary may not thereafter be deprived of an interest in the policy without its consent. Ruckenstein v. Metropolitian Life Ins. Co., 263 NY 204, 1934.

The best evidence rule provides that when the terms of a writing are to be proved, the original document must be produced unless the proponent can show it to be unavailable for reasons other than his own fault. If the absence of the original can be satisfactorily accounted for, secondary evidence will be admissible. 2 McCormick on Evidence (5th ed.) p 62 §230.

Although the original Policy Change Request Form for the 1996 changes is not in Companion's file, Plaintiff has satisfactorily accounted for its absence and produced evidence referencing the terms of the 1996 changes. Plaintiff has provided a copy of a July 29, 1996 letter from Ernest B. Johnson referencing the 1996 changes.^[FN5] The Companion file contains a November 12, 1997 letter that makes reference to an irrevocable beneficiary. Furthermore, Judy Snowdon, a specialist for the Companion Life brokers area, viewed the two documents and testified that she had no reason to believe that the two were not copies of their respective originals. Defendant has not provided sufficient evidence to dispute Ms. Snowdon's assertions regarding the documents' authenticity.

Based upon the submissions of the parties, the Court finds that Plaintiff has made a sufficient showing of entitlement as a matter of law and Defendant has failed to raise a triable issue of fact. Accordingly, Plaintiff's motion for summary judgment is hereby granted. Defendant's cross-motion to dismiss Plaintiff's summons and complaint and amend its prayer for relief are dismissed as moot.

Settle order on notice.

January 5, 2010 ,