

Dindiyal v Dindiyal (2017 NY Slip Op 03152)





Dindiyal v Dindiyal


2017 NY Slip Op 03152


Decided on April 26, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 26, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
FRANCESCA E. CONNOLLY, JJ.


2015-11207
 (Index No. 4361/13)

[*1]Lolita Dindiyal, respondent, 
vAsha Dindiyal, appellant, et al., defendant.


Neil R. Finkston, Great Neck, NY, for appellant.
Martin Katzman, Garden City, NY, for respondent.

DECISION & ORDER
In an action for a judgment declaring that the plaintiff is the sole beneficiary of a life insurance policy, the defendant Asha Dindiyal appeals from an order of the Supreme Court, Nassau County (Diamond, J.), entered August 12, 2015, which granted the plaintiff's motion for summary judgment declaring that she is the sole beneficiary of the subject life insurance policy.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is the sole beneficiary of the subject life insurance policy.
The plaintiff is the sister of Dasrat Dindiyal. The defendant Asha Dindiyal (hereinafter the defendant) is the former wife of Dasrat. In 2006, Dasrat commenced an action for a divorce and ancillary relief against the defendant. On April 20, 2007, while the divorce action was pending, Dasrat changed the beneficiary of a life insurance policy issued by the Prudential Life Insurance Company of America (hereinafter the Prudential policy) he maintained from the defendant to the plaintiff. On August 12, 2008, Dasrat and the defendant entered into a stipulation of settlement with regard to their marital estate. The Prudential policy was not mentioned in the stipulation of settlement. Dasrat died on September 24, 2008, before a judgment of divorce was entered.
The plaintiff commenced this action for a judgment declaring that she is the sole beneficiary of the Prudential policy. After issue was joined, the plaintiff moved for summary judgment declaring that she is the sole beneficiary of the Prudential policy. The Supreme Court granted the motion, and the defendant appeals.
The plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that the April 20, 2007, change to the Prudential policy designated her as the sole beneficiary. In opposition, the defendant failed to raise a triable issue of fact. As the Supreme Court noted, no provision was made in the stipulation of settlement giving the defendant any rights with regard to the Prudential policy (cf. Rogers v Rogers, 63 NY2d 582, 586-587; Simonds v Simonds, 45 NY2d 233, 239). The stipulation of settlement provided that each party made an "independent inquiry into the complete financial circumstances of the other and is fully informed of the income, assets, property and financial prospects of the other," that they "divided, to their mutual satisfaction," [*2]their assets, and that they "irrevocably waive[d] any and all claims or rights in or to any accounts or assets held by the other, except as specifically set forth" in the stipulation of settlement. Accordingly, the defendant derived no right to the proceeds of the Prudential policy under the stipulation of settlement. The defendant's allegation that Dasrat did not cause the change in beneficiary, but that the change was done without his knowledge, is based on pure speculation. To the extent that the affidavit of Sohan Lal, who is related by marriage to the defendant, recounted an alleged statement that Dasrat made to him regarding whether Dasrat distrusted the plaintiff, it constituted hearsay. While hearsay statements may be used for the purpose of opposing a motion for summary judgment, so long as they are not the only evidence submitted to raise a triable issue of fact (see Pontes v F & S Contr., LLC, 146 AD3d 829, 830), the content of Lal's affidavit was insufficient to raise an issue of fact as to whether Dasrat made the change of beneficiary on the Prudential policy in April 2007.
The defendant's remaining contentions are without merit or improperly raised for the first time on appeal.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment.
Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is the sole beneficiary of the Prudential policy (see Lanza v Wagner, 11 NY2d 317, 334).
LEVENTHAL, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




