Opinion
2014-03495, Index No. 5080/12.
05-04-2016
Jessica TRAIMAN, respondent, v. UNITED STATES LIFE INSURANCE COMPANY in City of New York, defendant, Vivien Traiman, et al., appellants.
Joanne Fanizza, P.A., Farmingdale, N.Y., for appellants. Harry R. Thomasson, Wantagh, N.Y., for respondent.
Joanne Fanizza, P.A., Farmingdale, N.Y., for appellants.
Harry R. Thomasson, Wantagh, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Opinion In an action, inter alia, for a judgment declaring null and void a change in beneficiary form of an annuity contract, the defendants Vivien Traiman, Laurence Traiman, and the Estate of Henry Traiman appeal, as limited by their brief, from so much of an amended order of the Supreme Court, Nassau County (McCormack, J.), dated February 26, 2014, as denied those branches of the motion of the defendants Vivien Traiman and Laurence Traiman, and the separate motion of the defendant Estate of Henry Traiman, which were, in effect, pursuant to CPLR 325(e) to remove this action to the Surrogate's Court, Nassau County, or, in the alternative, pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action, which sought a declaratory judgment, and to strike the plaintiff's demands for punitive damages and an award of attorneys' fees.
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants Vivien Traiman and Laurence Traiman, and the separate motion of the defendant Estate of Henry Traiman, which were pursuant to CPLR 3211(a)(7) to strike the plaintiff's demands for punitive damages and an award of attorneys' fees, and substituting therefor provisions granting those branches of the separate motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff commenced this action against, among others, her sister, Vivien Traiman, her brother, Laurence Traiman, and the Estate of Henry Traiman (hereinafter the estate), seeking, inter alia, a judgment declaring null and void a change in beneficiary form designating Vivien Traiman as the sole beneficiary of an annuity contract purchased by Henry Traiman (hereinafter the decedent). The complaint alleges that the designated beneficiaries of the annuity were previously the decedent's three children, i.e., the plaintiff and her two siblings, and the decedent executed a change of beneficiary form designating Vivien Traiman as sole beneficiary when he was of diminished capacity.
The plaintiff's siblings and the estate (hereinafter collectively the appellants) separately moved, inter alia, in effect, pursuant to CPLR 325(e) to remove this action to the Surrogate's Court, Nassau County, or, in the alternative, pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action, which sought a declaratory judgment, and to strike the plaintiff's demands for punitive damages and an award of attorneys' fees. In the order appealed from, the Supreme Court denied those motions. It is undisputed that the Surrogate's Court, Nassau County, declined to hear the matter. Under the circumstances, the Supreme Court providently exercised its discretion in denying those branches of the appellants' motions which were to remove the action to the Surrogate's Court, Nassau County (see Matter of Gopaul v. New York City Employees' Retirement Sys., 122 A.D.3d 848, 849, 998 N.Y.S.2d 58 ).
However, the plaintiff failed to plead a basis for an award of attorneys' fees or punitive damages. “The ‘American Rule,’ which is followed in New York, is that ‘[a]n attorney's fee is merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority’ ” (214 Wall St. Assoc., LLC v. Medical Arts–Huntington Realty, 99 A.D.3d 988, 990, 953 N.Y.S.2d 124, quoting Levine v. Infidelity, Inc., 2 A.D.3d 691, 692, 770 N.Y.S.2d 83 ; see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 ; Schwartz v. Rosenberg, 67 A.D.3d 770, 771, 889 N.Y.S.2d 90 ). Here, no contractual or statutory basis is pleaded for an award of attorneys' fees.
Further, the allegations in the complaint did not indicate that the appellants acted with the high degree of moral culpability required to justify an award of punitive damages (see Farm Stores v. School Feeding Corp., 102 A.D.2d 249, 256, 477 N.Y.S.2d 374, affd. in part 64 N.Y.2d 1065, 489 N.Y.S.2d 877, 479 N.E.2d 222 ), nor did the conduct jeopardize the public or public policy (see Aronis v. TLC Vision Ctrs. Inc., 49 A.D.3d 576, 577, 853 N.Y.S.2d 621 ; Randi A.J. v. Long Is. Surgi–Ctr., 46 A.D.3d 74, 82, 842 N.Y.S.2d 558 ). The complaint alleges a private wrong and is insufficient to support a claim for punitive damages (see Global Mar. Power, Inc. v. Kustom Engines & Performance Eng., 108 A.D.3d 501, 502, 968 N.Y.S.2d 578 ).
We further note that, although the plaintiff may be awarded full relief without resort to a declaratory judgment (see Matter of Greenwold, 236 A.D.2d 400, 653 N.Y.S.2d 625 ), relief may be pleaded in the alternative, and there is no basis at this juncture to dismiss the plaintiff's cause of action for a declaratory judgment (see Matter of Tilcon N.Y., Inc. v. Town of Poughkeepsie, 87 A.D.3d 1148, 930 N.Y.S.2d 34 ).