10-4467-cv
Liberty Life Assurance v. Bahan

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of October, two thousand eleven.

PRESENT:
            JOHN M. WALKER, JR.,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                      Circuit Judges,
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LIBERTY LIFE ASSURANCE CO. OF
BOSTON and LIBERTY ASSIGNMENT
CORP.,
          Plaintiffs-Appellees,

ARISTEDES MAHAIRAS, GEORGE
MAHAIRAS, and JOHN MAHAIRAS,
                                                        10-4467-cv
            Cross-Defendants-
            Appellees,

                  -v.-

ANNA BAHAN,
          Defendant-Cross-
          Claimant-Appellant.
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FOR PLAINTIFFS-APPELLEES:     H. MARK STICHEL, Gohn Hankey &
                              Stichel, LLP, Baltimore, Maryland.

FOR CROSS-DEFENDANTS-
APPELLEES:                           CHRISTOPHER J. MARENGO, Law Offices
                                     of Christopher J. Marengo, Esq.,
                                     Bronx, New York.
FOR DEFENDANT-CROSS-
CLAIMANT-APPELLANT:           MICHAEL S. HABER, Law Offices of
                              Michael S. Haber, New York, New
                              York.


          Appeal from the United States District Court for the

Southern District of New York (Rakoff, J.).   UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED.

          Defendant-cross-claimant-appellant Anna Bahan appeals

from the district court's judgment entered September 30, 2010,

granting summary judgment in favor of cross-defendants-appellees,

Aristedes Mahairas, George Mahairas, and John Mahairas (the

"Mahairas brothers"), declaring them to be the legal

beneficiaries of the annuity at issue in the interpleader action,

and dismissing Bahan's cross-claims.   We assume the parties'

familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

          We review the district court's grant of summary

judgment de novo.   See Miller v. Wolpoff & Abramson, L.L.P., 321
F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823 (2003).     "We

may affirm only if we conclude that on the record presented,

considered in the light most favorable to [Bahan], no reasonable

jury could find in [her] favor."   Capobianco v. City of New York,
422 F.3d 47, 54-55 (2d Cir. 2005).

          We have conducted an independent review of the record

in light of these principles, and affirm the district court's

grant of summary judgment.


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             Plaintiffs-appellees Liberty Life Assurance Company of

Boston and Liberty Assignment Corporation (together, "Liberty")

commenced this interpleader action on May 19, 2009 to resolve the

competing claims of Bahan and the Mahairas brothers to the

proceeds of an annuity set up for the now-deceased Kevin

Tillinger.    Bahan filed cross-claims against the Mahairas

brothers for (1) conversion, (2) breach of fiduciary duty, (3)

unjust enrichment, (4) fraud, (5) breach of constructive trust,

(6) civil RICO, and (7) "money had and received."

          On January 13, 2010, the Mahairas brothers moved for

summary judgment on all of Bahan's cross-claims.    The district

court granted summary judgment dismissing Bahan's claims for

breach of fiduciary duty, breach of constructive trust, civil

RICO, and "money had and received," ruling from the bench on

March 4, 2010, and reserved decision on the claims for

conversion, unjust enrichment, and fraud.    The district court

then granted summary judgment on the remaining claims by a

Memorandum Order dated August 20, 2010.    Bahan does not challenge

the district court's dismissal of the breach of fiduciary duty,

breach of constructive trust, and RICO claims.    She argues that

there are disputed facts that preclude summary judgment on the

claims for conversion, unjust enrichment, fraud, and "money had

and received."

          As the district court noted, all of Bahan's claims rise

or fall on the validity of the September 25, 2006 letter

designating the Mahairas brothers as beneficiaries of the


                                  -3-
annuity.   If Tillinger signed the letter, was competent when

doing so, and the Mahairas brothers did not improperly induce or

coerce him to sign it, the change in beneficiary was valid,1 and

Bahan's claims for conversion, unjust enrichment, fraud, and

"money had and received" all fail under New York law.   See

Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d

Cir. 2006) (conversion requires an "unauthorized assumption" of

property belonging to another); Mirvish v. Mott, 901 N.Y.S.2d

603, 607 (1st Dep't 2010) (same); Kaye v. Grossman, 202 F.3d 611,

616 (2d Cir. 2000) (to succeed on an unjust enrichment claim,

"equity and good conscience [must] require restitution");

Rosenzweig v. Friedland, 924 N.Y.S.2d 99, 102 (2d Dep't 2011)
(same); Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 108

(2d Cir. 2009) (citing Lama Holding Co. v. Smith Barney, Inc., 88

N.Y.2d 413, 421 (1996)) (fraud requires a knowing

misrepresentation that causes injury).   Accordingly, to succeed

on any of her claims, Bahan had to show either that somebody

forged Tillinger's signature on the September 25th letter, that

the Mahairas brothers improperly induced Tillinger to sign, or

that even without such inducement, Tillinger was not competent to

do so.   See Sears v. First Pioneer Farm Credit, ACA, 850 N.Y.S.2d
219, 222 (3d Dep't 2007) (New York courts presume competence at

     1
          In a footnote in her brief, Bahan states that there is
"no explicit language [in the settlement agreement] that
expressly permits a change in beneficiary in the absence of the
death of Anna Bahan." Bahan did not, however, dispute
Tillinger's authority to change the beneficiary in her 56.1
Counter Statement. (See Mahairas 56.1 Stmt. ¶ 18 (citing
Fairhurst Decl. ¶ 10); Bahan 56.1 Counter Stmt. at 2 (declining
to expressly deny ¶ 18).)

                                -4-
time of performance of challenged action; burden of proving

incompetence rests with party asserting incapacity).

          Bahan maintains that questions of material fact were

presented as to these very issues.     In support of this assertion,

she primarily points out that:   (1) an unsigned letter, dated

October 25, 2005, ostensibly from Tillinger, requested that a

"change of beneficiary" form be sent to the address of one of the

Mahairas brothers; (2) the Mahairas brothers filled out a change

of beneficiary form in May 2006; and (3) the Mahairas brothers

steered Tillinger towards a particular notary, with whom they

were acquainted.   These facts, however, only support the

assertion that the Mahairas brothers assisted Tillinger in

changing the beneficiary of the annuity, not that they improperly

induced him to execute the necessary paperwork.

          On appeal, Bahan also argues that the signatures on the

two versions of the September 25th letter are not identical.

While the implication of this assertion is that the signatures

were forged, Bahan did not dispute the authenticity of the

signatures at the summary judgment phase.    (See Mahairas 56.1

Stmt. ¶ 22; Bahan 56.1 Counter Stmt. at 3 (declining to expressly

deny ¶ 22).)   Furthermore, there was no evidence before the

district court to support an allegation of forgery.

          Finally, Bahan argues that Tillinger was largely

homebound and addicted to painkillers in 2005 and 2006, implying

that he was not competent to sign the letter or able to visit the

notary.   Bahan did not, however, point the district court to any



                                 -5-
evidence showing that Tillinger was not mobile, competent, or

lucid when he signed the letter.

            Therefore, on the evidence before the district court,

no reasonable jury could have concluded that the September 25th

letter was forged, that the Mahairas brothers improperly induced

Tillinger to sign it, or that Tillinger was incompetent at the

time the letter was signed.    Summary judgment was appropriate on

all of Bahan's claims, and the district court properly concluded

as a matter of law that the Mahairas brothers were the

beneficiaries of the annuity.

            We have considered Bahan's other arguments on appeal

and have found them to be without merit.    Accordingly, the

judgment of the district court is hereby AFFIRMED in its

entirety.

                           FOR THE COURT:
                           CATHERINE O'HAGAN WOLFE, CLERK




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