Defendants move for an order, pursuant to CPLR 3211(a)(1), (5), (7) and (10), dismissing plaintiff's complaint.

Upon the foregoing papers, the motion is decided as follows:

Plaintiff was the wife of Matthew Colavito at the time of his death on January 5, 2011. At the time of his death, Matthew [*2]Colavito possessed group term life insurance and ordinary employment death benefits in the total amount of Two Hundred Fifty-Four Thousand Two Hundred Eighty Dollars ($254,280.00). The benefits were administered by the New York State and Local Retirement System. Matthew Colavito registered with the retirement system on October 22, 2007, and named plaintiff as his primary beneficiary and defendant Domenic Colavito as his contingent beneficiary. In a letter dated September 8, 2009, the New York State and Local Retirement System acknowledged receipt of Matthew Colavito's new designation of beneficiaries form naming defendants Domenic Colavito and Teresa Mamone as his primary beneficiaries.

Relevant to the decision upon the within motion, plaintiff attaches records from the Dutchess County Surrogate Court proceeding which was before this Court in its role as Surrogate of Dutchess County and a copy of a decision and order of Hon. Thomas A. Breslin, Justice of the New York State Supreme Court, dated January 24, 2014. The decision of this Court, dated October 24, 2011, in the Matter of the Estate of Matthew R. Colavito, concerned an order to show cause brought by plaintiff seeking to void the letters of administration granted to Domenic Colavito, determining that she was not properly served and awarding her attorney's fees. After conducting a Traverse Hearing, the Court found that Kathleen Colavito was properly served with the citation. Additionally, the Court noted that Kathleen Colavito had initiated a matrimonial proceeding against the decedent in 2010. The defendants also offer the decision and order of Justice Breslin in the matter of Kathleen Colavito v. New York State Comptroller and The New York State Local Retirement System. Plaintiff commenced that action seeking a declaratory judgment determining that the defendants therein were obligated to pay a portion of the death benefits to her.

Plaintiff's current complaint alleges five causes of action: (1) unjust enrichment; (2) constructive trust; (3) fraud; (4) RICO mail fraud; and, (5) RICO wire fraud.

Defendants initially indicate that dismissal is warranted under CPLR 3211(a)(1) as the documentary evidence, specifically the sworn statement of Matthew Colavito changing his beneficiaries to the defendants and the acknowledgment of such by the New York State and Local retirement System, effectively disposes of the plaintiff's claims. Dismissal is warranted under CPLR 3211(a)(1) only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Leon v. Martinez, 84 NY2d 83 [1994]).

Plaintiff's first cause of action for unjust enrichment alleges that she was the named beneficiary entitled to all the life insurance and death benefits possessed by her husband at the time of his death. Further, she states that she was entitled to [*3]notice and consent prior to her removal as a beneficiary or prior to the distribution of funds.

The documentary evidence presented by the defendants clearly establishes that as of September 8, 2009, the New York State and Local Retirement System recognized that Matthew R. Colavito designated his primary beneficiaries as the defendants herein.

It is clear that the Retirement and Social Security Law §51(d) and §60(c) mandate that the New York State Comptroller pay death benefits only to designated beneficiaries (see Nisnewitz v. Regan, 207 AD2d 605 [3rd Dept 1994] leave to appeal denied by 84 NY2d 812; Lade v. Levitt, 33 AD2d 956 [3rd Dept 1970] appeal dismissed 27 NY2d 532). Further, while the Court notes that the Employee Retirement Income Security Act of 1974 (ERISA) does not allow designation of a beneficiary or change of a beneficiary to one other than a spouse without the spouse s consent, ERISA does not apply to a plan sponsored by state or local government (see 29 USC §1003 [b][1]; Matter of Ross, 6 Misc 3d 1040[A][Sur Ct, Nassau County 2005]; Matter of King, 196 Misc 2d 250 [Sur Ct, Broome County 2003]).

Unjust enrichment occurs where defendants enjoy a benefit bestowed by the plaintiff, but without adequately compensating the plaintiff (see Sergeants Benevolent Ass'n Annuity Fund v. Renck, 19 AD3d 107 [1st Dept 2005]). Receipt of a benefit alone is insufficient to establish a cause of action for unjust enrichment (see Wiener v. Lazard Freres & Co., 241 AD2d 114 [1st Dept 1998]). Rather, liability requires that under the circumstances and as between the parties to the transaction the enrichment be unjust (see McGrath v. Hilding, 41 NY2d 625 [1977]).

Here, the documentary evidence clearly establishes that Matthew Colavito validly effected a change of beneficiaries from the plaintiff to the defendants and that notice of said change and consent thereto were not necessary to lawfully effect such change. Accordingly, the documentary evidence establishes that the death benefit paid to the defendants was not unjustly received; thus, plaintiff's first cause of action is dismissed.

Plaintiff's second cause of action seeks the imposition of a constructive trust. In order to obtain the remedy of a constructive trust, a plaintiff must demonstrate four factors: (1) a fiduciary or confidential relationship between the parties; (2) a promise; (3) a transfer of some asset in reliance upon the promise; and, (4) unjust enrichment flowing from the breach of the promise (see Henderson v. Thorpe, 73 AD3d 978 [2nd Dept 2010]). As plaintiff's first cause of action fails so must her second. As stated above, the documentary evidence as submitted in support of defendants' motion clearly establishes that any claim for unjust enrichment, a necessary element of the imposition of a constructive trust, must fail. Accordingly, [*4]plaintiff's second cause of action must be dismissed.

Plaintiff's third cause of action seeks damages for fraud. The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages (see Eurycleia v. Seward & Kissel, 12 NY3d 553 [2009]). Pursuant to CPLR 3016(b), "the circumstances constituting the wrong shall be stated in detail" (see CPLR 3016[b]; Pludeman v Northern Leasing, 10 NY3d 486 [2008]).

Plaintiff's complaint indicates that defendants made representations to the New York State Comptroller and the New York State and Local Retirement System which they knew to be false to defraud plaintiff. The documentary evidence, specifically Exhibit "C" of defendant's motion (the Designation of Beneficiary Form) and Exhibit "B" (which includes the letter for the New York State and Local Retirement System denoting the beneficiary change), utterly refutes plaintiff's factual allegations. The defendants were named by the decedent as his beneficiaries, which were then sworn to in front of a notary, recognized by the New York State and Local Retirement System and payment was upheld by a Justice of the Supreme Court (see Defendant's Exhibit "E"). Clearly the documentary evidence provided by defendants in support of their motion conclusively establishes a defense to plaintiff's third cause of action (see Assured Guar. Mun. Corp. v. DLJ Mtge. Capital, Inc., 44 Misc 3d 1206[A][Sup Ct, New York County 2014]). Additionally, the cause of action alleging fraud must be dismissed because it is not pled with the specificity required under CPLR 3016(b) (see Scomello v. Caronia, 232 AD2d 625 [2nd Dept 1996] leave to appeal dismissed by 90 NY2d 922). Conclusory allegations do not satisfy this requirement (id.). Accordingly, plaintiff's third cause of action is dismissed.

The Court, in the interest of judicial economy, will simultaneously address plaintiff's fourth and fifth causes of action seeking damages for RICO (Racketeer Influenced and Corrupt Organization Act) mail and wire fraud. Plaintiff fails to plead the alleged predicate acts of mail fraud and wire fraud with sufficient particularity (see Metropolitan Enters. NY v. AMC United Inc., 39 Misc 3d 1203[A][Sup Ct, Kings County 2013]). The complaint must specify the following: (1) precisely what statements were made in what documents or oral representations or what omissions were made; (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) the same; (3) the content of such statements and the manner in which they misled the plaintiff; and, (4) what the defendants obtained as a consequence of the fraud (see Ritchie v. Carvel Corp., 180 AD2d 786 [2nd Dept 1992]). Here, plaintiff's generalized statements that defendants [*5]used mail and wire to engage in a scheme to defraud the plaintiff of her money and property are woefully insufficient to meet the particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure in a civil action based upon RICO (id.). Accordingly, plaintiff's fourth and fifth causes of action must be dismissed.

Based upon the foregoing, plaintiff's complaint is dismissed in its entirety.

This constitutes the decision and order of the Court.

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HON. James D. Pagones, A.J.S.C.