Upon the E-file document list numbered 8 to 56, 58 to 61, and 63 to 66 read and considered on the motion by plaintiff for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiff and striking the answer of defendant and on the cross-motion of defendant for summary judgment; it is

ORDERED that the motion by plaintiff pursuant to CPLR 3212 for summary judgment is [*2]granted, as set forth herein; and it is further

ORDERED that the cross-motion of defendant for an order granting her summary judgment is denied.

This is an action commenced on October 13, 2022 by plaintiff T.M.G. ("plaintiff"), individually, and as the administrator of the Estate of R.J.G. against defendant C.G. ("defendant") under the terms of a stipulation of settlement entered into between R.G. ("the decedent") and defendant on August 22, 2013 ("the stipulation"), which stipulation was incorporated but not merged into their judgment of divorce ("the judgment") dated June 11, 2014. R.G. passed away on March 16, 2021, soon after which, the complaint alleges defendant wrongfully and inappropriately collected and retained funds derived from the decedent's 401K plan and death benefit, both accrued and owned by the decedent through his employment with Geico Insurance Company ("Geico"). Plaintiff asserts three causes of action all of which seek a return of the gross proceeds of the decedent's 401K and Geico death benefit. Issue was joined by the service and filing of an answer on January 17, 2023.

Plaintiff now moves for summary judgment and submits, inter alia, an affirmation of counsel, plaintiff's sworn affidavit, the pleadings, the stipulation, the judgment, and letters of administration. Plaintiff asserts that under the terms of the stipulation, defendant waived any claim to the 401K benefit funds and the death benefit proceeds and that any disposition of property of the decedent's to defendant was revoked pursuant to section 5-1.4 (a) of the Estates, Powers and Trusts Law ("EPTL"). Defendant cross-moves for summary judgment and submits, an attorney affirmation, her sworn affidavit, and various correspondence. Defendant argues, inter alia, that any purported waiver of the decedent's retirement and death benefits was not explicit. Both parties reply and submit supplemental affirmations.

A "stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to the principles of contract construction and interpretation" (Gucker v Gucker, 144 AD3d 798, 799, 41 NYS3d 81 [2d Dept 2016]; see also Clark v Clark, 33 AD3d 836, 837, 827 NYS2d 159 [2d Dept 2006]; Simmons v Simmons,305 AD2d 661, 759 NYS2d 688 [2d Dept 2003]). The aim of the court when interpreting a contract is to arrive at a construction that gives fair meaning to all of its terms and provisions, and to reach a "practical interpretation of the expressions of the parties so that their reasonable expectations will be realized" (see Pellot v Pellot, 305 AD2d 478, 759 NYS2d 494 [2d Dept 2003]; Gonzalez v Norrito, 256 AD2d 440, 682 NYS2d 100 [2d Dept 1998]; Joseph v Creek & Pines, Ltd., 217 AD2d 534, 535, 629 NYS2d 75 [2d Dept], lv denied 89 NY2d 804, 653 NYS2d 543 [1996]; see also Matter of Matco-Norca, Inc., 22 AD3d 495, 802 NYS2d 707 [2d Dept 2005]; Tikotzky v City of New York, 286 AD2d 493, 729 NYS2d 525 [2d Dept 2001]; Partrick v Guarniere, 204 AD2d 702, 612 NYS2d 630 [2d Dept], lv denied 84 NY2d 810, 621 NYS2d 519 [1994]). In determining the rights and obligations of the parties, it is well established that "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records98 NY2d 562, 569, 750 NYS2d 565 [2002]; R/S Assoc. v NY Job Dev Auth., 98 NY2d 29, 32, 744 N YS2d 358 [2002]). "If the language of the agreement is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence" (Salerno v Odoardi, 41 AD3d 574, 575, 838 NYS2d 156 [2d Dept 2007]). As it is a question of law whether or not a [*3]contract is ambiguous (W. W. W. Assoc. v Giancontieri, 77 NY2d 157, 565 N.Y.S.2d 440 [1990]), a court must first determine whether the agreement at issue on its face is reasonably susceptible to more than one interpretation (see Chimart Assoc. v Paul, 66 NY2d 570, 498 NYS2d 344 [1986]). When a contract term or clause is ambiguous, and the determination of the parties' intent depends on the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the interpretation of such language presents a question of fact and the determination is a matter for trial (see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880, 498 NYS2d 760 [1985]; Brook Shopping Ctrs. v Allied Stores Gen. Real Estate Co., 165 AD2d 854, 560 NYS2d 317 [2d Dept 1990]; see also Ashland Mgt. v Janien, 82 NY2d 395, 40-402, 604 NYS2d 912 [1993]; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn.,32 NY2d 285, 290-91, 344 NYS2d 925 [1973]). "A court should not, under the guise of interpretation, make a new contract for the parties" (Simmons v Simmons,305 AD2d at 661, 759 NYS2d 688).

As to the decedent's 401K, the stipulation specifically provides at paragraph 8 that the parties waive and release "any and all claims or rights with respect to any pension plans, individual retirement accounts, Keogh plan, 401K plans or other retirement benefits to which the other party is presently entitled or may become entitled in the future." This language is sufficiently explicit to effectuate a valid waiver by defendant of the decedent's 401K plan benefits (see Silber v Silber, 99 NY2d 395, 757 NYS2d 227 [2003]; Schtaz v Feliciano-Schatz,170 AD3d 766, 94 NYS3d 350 [2d Dept 2019]; Matter of Christie,152 AD3d 765, 59 NYS3d 421 [2d Dept 2017]).

Paragraph 9 of the stipulation provides as follows:

Each party shall have the right to dispose of the property of such party by last will and testament in such manner as such party may deem proper in the sole discretion of such party, with the same force and effect as if the other party had died. Each party, individually and for his or her heirs, executors, administrators, successors and assigns, hereby waives, releases and relinquishes any and all claims, rights or interests as a surviving spouse in or to any property, real or personal, which the other party owns or possesses at death, or to which the other party or his or her estate may be entitled. Each party expressly waives all rights which he or she now or may hereafter have pursuant to any provisions of the laws of any state or country which may have jurisdiction over the estate of either party hereto on his or her death, as now or hereafter in effect, to elect to take in contravention of the terms of any will of the other party, whether now or hereafter executed. Each party recognizes that this waiver includes rights that he or she otherwise might have or acquire under New York Estates, Powers and Trusts Law Section 5-1.1-A, any amendment thereof or any successor statute.

While plaintiff argues that this provision includes the decedent's Geico death benefit plan, that plan is not specifically mentioned in the stipulation and there are cases that would support the contrary positions asserted by both parties to this action (see Diversified Investment Advisors, Inc. v Baruch,793 F.Supp.2d 577, 581-582 [EDNY 2011][discussing New York case law on waivers of retirement, pension, life insurance, and similar benefits in divorce agreements]; see also Matter of Christie,152 AD3d 765, 59 NYS3d 421 [2d Dept 2017]; Matter [*4]of McCauley v New York State & Local Employees' Retirement Sys., 146 AD3d 1066, 46 NYS3d 262 [3d Dept 2017]; Hess v Wojcik-Hess, 86 AD3d 847, 928 NYS2d 103 [3d Dept 2011]). Regardless of whether there is an explicit waiver of the decedent's death benefits in the stipulation, any benefits that defendant claims under the decedent's employer death benefit plan were revoked by operation of law once the parties were divorced (see EPTL 5-1.4 [a]). EPTL 5-1.4 (a) states, in pertinent part, that:

Except as provided by the express terms of a governing instrument, a divorce...or annulment of a marriage revokes any revocable (1) disposition or appointment of property made by a divorced individual to, or for the benefit of, the former spouse, including, but not limited to, a disposition or appointment by will,....by beneficiary designation in a life insurance policy or...in a pension or retirement benefits plan.

(EPTL 5-1.4 [a](emphasis added). EPTL 5-1.4 "was enacted to prevent a testator's inadvertent disposition to a former spouse where the parties' marriage terminated by annulment or divorce and the former spouse is a beneficiary in a testamentary instrument which the testator neglects to revoke" (Matter of Schmeid,88 AD3d 803, 804, 930 NYS2d 666 [2d Dept 2011]). The statute also provides that "provisions of a governing instrument are given effect as if the former spouse [the defendant herein] had predeceased the divorced individual [the decedent herein] as of the time of the revocation" (EPTL 5-1.4 [b][1]). Thus, the judgment of divorce, granted on June 11, 2014, revoked any claim defendant could make to decedent's death benefit, as she is considered to have predeceased the decedent on that date (see EPTL 5-1.4 [a] & [f][5]). Moreover, EPTL 5-1.4 has been held to revoke retirement and death benefits designating the former spouse as beneficiary (see Ministers & Missionaries Benefit Bd. v Snow,26 NY3d 466, 471, 25 NYS3d 21, 24 [2015][retirement and death benefit plans of decedent fell within EPTL 5-1.4 and designation of ex-spouse as beneficiary was revoked upon parties' divorce]; United States Life Ins. Co. In the City of NY v Shields,171 AD3d 1262, 97 NYS3d 773 [3d Dept 2019]: Matter of McCauley v New York State & Local Employees' Retirement Sys., 146 AD3d 1066, 46 NYS3d 262 [3d Dept 2017]; see also Matter of Sugg, 49 Misc 3d 455, 12 NYS3d 842 [Surrogate's Ct. Erie County 2015]). Therefore, because the defendant waived any rights to the decedent's 401K plan, she is not entitled to retain those funds. Moreover, because the stipulation does not explicitly provide that defendant was to receive the decedent's employer death benefits after the divorce, defendant is not entitled to retain them under EPTL 5-1.4 (a).

The elements of a cause of action for breach of contract are (1) the existence of a contract between plaintiff and defendant, (2) performance by the plaintiff, (3) defendant's breach of the contract, and (4) damages resulting from the breach (see 143 Bergen St., LLC v Ruderman, 144 AD3d 1002, 1003, 42 NYS3d 252 [2d Dept 2016]; JPMorgan Chase v J.H. Electric of NY, Inc., 69 AD3d 802, 803, 893 NYS2d 237 [2d Dept 2010]; Furia v Furia, 116 AD2d 694, 498 NYS2d 12 [2d Dept 1986]). Under CPLR 213 (2), the statute of limitations on a claim for breach of contract is six years and begins to run when a cause of action accrues (CPLR 203 [a]), that is, at the time of the breach (see Ely-Cruikshank Co. v Bank of Montreal,81 NY2d 399, 599 NYS2d 501 [1993]; Matter of Edelen, 219 AD3d 931, 195 NYS3d 741 [2d Dept 2023]).

Here, plaintiff is entitled to summary judgment on the breach of contract claim, which was timely asserted despite defendant's arguments to the contrary, as this action was filed soon [*5]after the defendant's breach, which occurred when she wrongfully retained the decedent's 401K benefits. Because defendant explicitly waived the decedent's 401K benefits under the stipulation, she is not entitled to retain those benefits. Further, by operation of law, her status as a beneficiary under the 401K plan and the decedent's employer death benefit were revoked (see EPTL 5-1.4 [a]), such that defendant is not entitled to retain any benefits that were not explicitly granted to her in the stipulation. The retention of those benefits resulted in a breach of the stipulation, inasmuch as defendant received benefits to which she was not entitled under its terms, nor pursuant to EPTL 5-1.4. To the extent that defendant's retention of the decedent's employer death benefits is not a direct breach of the stipulation, plaintiff then would be entitled to summary judgment on the unjust enrichment claim by operation of law under EPTL 5-1.4 (see e.g. GFRE, Inc. v U.S. Bank, N.A.,130 AD3d 569, 570, 13 NYS3d 452 [2d Dept 2015] citing Mobarak v Mowad, 117 AD3d 998, 1001, 986 NYS2d 539 [2d Dept 2014]; Cruz v McAneney, 31 AD3d 54, 59, 816 NYS2d 486, 491 [2d Dept 2006]).

Plaintiff, however, is not entitled to summary judgment on the remaining claim for tortious interference of contract, as this count is duplicative of the breach of contract claim and furthermore does not state a separate cognizable claim (see e.g. White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426, 835 NYS2d 530 [2007]; Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035, 920 NYS2d 123 [2d Dept 2011]; Pacific Carlton Dev. Corp. v 752 Pac., 62 AD3d 677, 878 NYS2d 421 [2d Dept 2009]).

Defendant's arguments regarding the applicability of the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1000 et seq.) are unavailing (see Silber v Silber, 99 NY2d 395, 757 NYS2d 227 [2003]; Schtaz v Feliciano-Schatz, 170 AD3d 766, 94 NYS3d 350 [2d Dept 2019]; Matter of Christie,152 AD3d 765, 59 NYS3d 421 [2d Dept 2017]) and defendant's remaining contentions lack merit (see Schtaz v Feliciano-Schatz, supra; Matter of Christie, supra). Defendant has not presented any basis upon which to grant summary judgment in her favor nor does she produce any evidence of a triable question of fact to defeat plaintiff's entitlement of summary judgment. Furthermore, the affirmative defenses raised in defendant's answer are dismissed as unmeritorious (see Emigrant Bank v Myers, 147 AD3d 1027, 47 NYS3d 446 [2d Dept 2017]).

Accordingly, plaintiff's motion for summary judgment on the breach of contract and unjust enrichment claims is granted and defendant's cross-motion for summary judgment is denied.

The foregoing constitutes the decision and Order of the Court.