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1 Page 1 Only the Westlaw citation is currently available. This decision was reviewed by West editorial staff and not assigned editorial enhancements. United States District Court, S.D. New York. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON and Liberty Assignment Corporation, Plaintiffs, v. Anna BAHAN, Aristedes Mahairas, George Mahairas, and John Mahairas, Defendants. No. 09 Civ. 4715(JRS). Aug. 23, MEMORANDUM ORDER JED S. RAKOFF, District Judge. *1 This is an interpleader action brought by plaintiffs to determine the beneficiary of an annuity set up for the benefit of Kevin Tillinger, now deceased. Defendant Bahan, suing in her personal capacity and as executor and administrator of Tillinger's estate, brought a cross-complaint against defendants Aristedes Mahairas, George Mahairas, and John Mahairas (collectively, the Mahairas defendants ). Pending before the Court is the Mahairas defendants' motion for summary judgment dismissing defendant Bahan's cross-complaint. After receiving full briefing, the Court heard oral argument on March 4, See Tr., 3/04/10 ( Tr. ). The Court received supplemental letter briefing on March 11, Plaintiffs also filed an unopposed motion for fees and costs FN1 that was granted from the bench. Tr. at FN1. Plaintiffs sought $17, in fees and $1, in expenses as of the time of the motion, with leave to file for additional fees and expenses at the conclusion of the case. By way of background, in 1999 Tillinger brought suit against Tishman Realty and Construction Co. and 42nd Street Development Project, Inc. (collectively Tishman ) in connection with an injury suffered in the course of his work on a construction site. Mahairas 56.1 Statement 1, ECP No. 30; Bahan 56.1 Statement 1, ECF No FN2 Liberty Mutual Insurance Company ( Liberty Mutual ) was Tishman's primary insurer; TIG Insurance Company provided excess coverage. Mahairas 56.1 Statement 3 4. In 2004, Tillinger, Tishman, and the insurances companies entered into a settlement agreement under which, inter alia, Tillinger would receive set monthly payments for thirty years, with additional lump sums payable in 2019 and Id. 2, 7; see also Bahan 56.1 Statement 2. Liberty Mutual subsequently assigned its payment obligations to plaintiff Liberty Assignment Corporation ( Liberty Assignment ), which purchased an annuity, owned by Liberty Assignment, to make those payments. See Mahairas 56.1 Statement Although Liberty Assignment, as the annuity owner, possessed the authority to change the beneficiary and to direct to whom payments should be made, section 4 of the settlement agreement designated defendant Bahan, Tillinger's grandmother, as beneficiary and allowed Tillinger to designate a change in beneficiary. See id FN2. Defendant Bahan has failed to comply with Local Rule 56.1(b), which requires that a party opposing summary judgment must submit a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, as she does not address each numbered paragraph in the Mahairas defendants' 56.1 Statement. It appears that she only addresses disputed facts, and the unaddressed paragraphs are deemed to be admitted. Therefore, undisputed paragraphs are cited only by reference to the Mahairas 56.1 Statement.

2 Page 2 An unsigned letter dated October 25, 2005 purportedly from Tillinger requested that forms and/or instructions regarding changing the beneficiary be sent to Tillinger, but listed the address of one of the Mahairas brothers, who was Tillinger's neighbor and landlord. See Mahairas 56.1 Statement 20 (citing Sanchez Decl. Ex. A, Ex. D, ECF No. 32); Bahan 56.1 Statement 120. Almost one year later, a typed, notarized letter dated September 25, 2006, signed by Tillinger, requested that the Mahairas defendants be designated as beneficiaries of the annuity. See Mahairas 56.1 Statement (citing Sanchez Decl. Ex. A, Ex. E); Bahan 56.1 Statement 21, 23 (disputing the form of the notarization). Plaintiffs deemed the September 25 letter to acceptable, and the Mahairas defendants were designated as the beneficiaries of the annuity. See Mahairas 56.1 Statement The change of beneficiary was confirmed by letter to Tillinger dated October 9, See id. 31 (citing Sanchez Decl. Ex. E). FN3 FN3. Defendant Bahan responds to this paragraph by noting that, at the time of this letter, Tillinger was hospitalized for cancer treatment and he was suffering from drug and alcohol addiction. See Bahan 56.1 Statement 31. This dispute is deemed to be nonresponsive to the fact that such a letter was sent. *2 On September 12, 2007, Tillinger died from a cocaine overdose. Mahairas 56.1 Statement 32; Bahan Statement 48 (citing Compl. Ex. H). From October 15, 2007 through April 15, 2009, Liberty Life made monthly annuity payments to the Mahairas defendants. Mahairas 56.1 Statement This action was filed on May 19, Defendant Bahan then filed a cross-complaint asserting seven cross-claims against the Mahairas defendants: for conversion, breach of fiduciary duty, unjust enrichment, fraud, constructive trust violation, civil RICO violation, and in equity. From the bench at oral argument, the Court dismissed with prejudice the breach of fiduciary, civil RICO, and constructive trust claims. See Tr. at 2 5. The alleged equity claim was dismissed for failure to state a claim independent of the other claims. Id. at 6. For the reasons discussed below, the Court hereby grants summary judgment to the Mahairas defendants on the remaining claims of conversion, unjust enrichment, and fraud and therefore dismisses the cross-complaint in its entirety. Under New York law, [c]onversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, (2d Cir.2006) (alteration in original) (quoting Vigilant Ins. Co. of Am. v. Hous. Auth., 87 N.Y.2d 36, 637 N.Y.S.2d 342, 660 N.E.2d 1121, 1126 (N.Y.1995)). Unjust enrichment requires 1) that the defendant benefitted; 2) at the plaintiff's expense; and 3) that equity and good conscience require restitution. Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir.2000). A fraud claim must establish [1] a misrepresentation or a material omission of fact which was false and known to be false by defendant, [2] made for the purpose of inducing the other party to rely upon it, [3] justifiable reliance of the other party on the misrepresentation or material omission, and [4] injury. Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 108 (2d Cir.2009) (alterations in original) (quoting Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 646 N.Y.S.2d 76, 668 N.E.2d 1370, 1373 (N.Y.1996)) (internal quotation marks omitted). FN4 Although each of these claims has different elements, in this case they all turn on the validity of the September 25, 2006 letter that designated the Mahairas defendants as the beneficiaries of the annuity. FN4. The issue was raised at oral argument of whether defendant Bahan had standing to assert a fraud claim when the misrepresentation, if any, was made to the plaintiffs. See Tr. at 6 7. However, New York law has recognized that a fraud claim may lie where the false misrepresentation was

3 Page 3 made to a third party, which results in injury to the plaintiff. See, e.g., Ruffing v. Union Carbide Corp., 308 A.D.2d 526, 528, 764 N.Y.S.2d 462 (N.Y.App. Div.2d Dep't 2003); Desser v. Schatz, 182 A.D.2d 478, , 581 N.Y.S.2d 796 (N.Y.App. Div. 1st Dep't 1992). It is true that there are certain suspicious circumstances in the record surrounding the change in beneficiary. For example, the September 25 letter was typewritten, and Tillinger's friend, Philip Winslow, a nonparty to this litigation, testified that Tillinger did not own a computer or word processor, while two of the Mahairas defendants testified that he did. See, e.g., Tr. at 19; Sanchez Reply Decl. Ex. G at 91, ECF No. 32 (Winslow deposition transcript). It is undisputed that Tillinger abused prescription and illegal drugs prior to his death, Tr. at 15, and Winslow testified that Tillinger was disoriented on visits, Tr. at 8. The unsigned October 25, 2005 letter requested that instructions on changing the beneficiary be sent to Tillinger at an address that was not his own. *3 Nonetheless, the Court concludes that such circumstances do not rise to the level that a reasonable juror could find in defendant Bahan's favor without resorting to unsubstantiated speculation as to what occurred. There is no evidence that the September 25 letter was not signed by Tillinger, and defendant Bahan does not dispute this statement in the Mahairas defendants Rule 56.1 Statement. The notary, Ellen Clark, confirmed at her deposition that her signature and stamp appear on the letter and that she always asks for identification from strangers and requires that the signature be signed in front of her. See Sanchez Reply Decl. Ex. H at 16, 25, 27 (Clark deposition transcript). Patricia Fairhurst, plaintiffs' 30(b)(6) witness, testified at her deposition that the company's procedure for changing a designated beneficiary included comparing the signature on the change request to the signature on the settlement agreement. Id. Ex. A at 15 (Fairhurst deposition transcript). There is also no evidence in the record from which a jury could reasonably conclude, without the grossest speculation, that Tillinger was improperly induced to execute the September 25 letter or that he was incompetent to do so. New York presumes that a person is competent at the time of the performance of the challenged action and the burden of proving incompetence rests with the party asserting incapacity. Sears v. First Pioneer Farm Credit, ACA, 46 A.D.3d 1282, 1285, 850 N.Y.S.2d 219 (N.Y.App. Div.3d Dep't 2007) (quoting In re Estate of Obermeier, 150 A.D.2d 863, 864, 540 N.Y.S.2d 613 (N.Y.App. Div.3d Dep't 1989)). Although defendant Bahan has attempted to raise a genuine issue as to Tillinger's competence because of, inter alia, his drug use and alcoholism, there is no material evidence from which a reasonable factfinder could conclude that Tillinger was incompetent at the time he signed the letter. Without evidence to support a conclusion that the September 25 letter was forged or executed by Tillinger under duress or other improper influence or while he was incompetent, the letter must be deemed to be valid and the resulting change in beneficiary to be legal. Therefore, there is no misrepresentation inherent in the letter that would sustain defendant Bahan's fraud claim. As the Mahairas defendants are therefore the legal beneficiaries of the annuity, defendant Bahan has no legal interest in the proceeds of the annuity and her conversion and unjust enrichment claims must fail. Accordingly, the Court hereby grants summary judgment to the Mahairas defendants on defendant Bahan's remaining claims for conversion, unjust enrichment, and fraud and dismisses defendant Bahan's cross-complaint with prejudice. The Court further holds that the Mahairas defendants are the legal beneficiaries of the annuity at issue in this interpleader action. Plaintiffs are directed to file a final calculation of fees and costs to which they are entitled by no later than August 27, 2010, to which the Mahairas defendants may respond by September 2, 2010, following which the Court will enter final judgment.

4 Page 4 *4 SO ORDERED. S.D.N.Y.,2010. Liberty Life Assur. Co. of Boston v. Bahan Not Reported in F.Supp.2d, 2010 WL (S.D.N.Y.) END OF DOCUMENT

5 441 Fed.Appx. 21, 2011 WL (C.A.2 (N.Y.)) (Not Selected for publication in the Federal Reporter) (Cite as: 441 Fed.Appx. 21, 2011 WL (C.A.2 (N.Y.))) Page 1 This case was not selected for publication in the Federal Reporter. Affirmed. West Headnotes United States Court of Appeals, Second Circuit. LIBERTY LIFE ASSURANCE CO. OF BOSTON and Liberty Assignment Corp., Plaintiffs Appellees, Aristedes Mahairas, George Mahairas, and John Mahairas, Cross Defendants Appellees, v. Anna BAHAN, Defendant Cross Claimant Appellant. No cv. Oct. 4, Background: Insurer filed interpleader action to resolve competing claims of grandmother and neighbors to proceeds of annuity. Grandmother asserted cross-claims against neighbors for conversion, breach of fiduciary duty, unjust enrichment, fraud, breach of constructive trust, civil Racketeer Influenced and Corrupt Organizations Act (RICO), and money had and received. The United States District Court for the Southern District of New York, Jed S. Rakoff, J., 2010 WL , granted summary judgment for neighbors. Grandmother appealed. Holdings: The Court of Appeals held that: (1) facts only supporting assertion that neighbors assisted annuitant in changing beneficiary of annuity to them were not sufficient to show that beneficiary had been improperly induced to execute letter designating neighbors as beneficiaries of annuity and (2) facts only supporting assertion that annuitant was largely homebound and addicted to painkillers was not sufficient to show that annuitant was not mobile, competent, or lucid when he signed letter designating neighbors as beneficiaries of annuity. [1] Annuities Annuities 29k26 Persons Entitled to Proceeds; Annuitants and Beneficiaries 29k28 k. Change of beneficiary in general. Most Cited Cases Facts only supporting assertion that neighbors assisted annuitant in changing beneficiary of annuity to them were not sufficient, under New York law, to show that beneficiary had been improperly induced to execute letter designating neighbors as beneficiaries of annuity. [2] Annuities Annuities 29k26 Persons Entitled to Proceeds; Annuitants and Beneficiaries 29k28 k. Change of beneficiary in general. Most Cited Cases Facts only supporting assertion that annuitant was largely homebound and addicted to painkillers was not sufficient, under New York law, to show that annuitant was not mobile, competent, or lucid when he signed letter designating neighbors as beneficiaries of annuity. *22 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 DE- CREED that the judgment of the district court is AFFIRMED.H. Mark Stichel, Gohn Hankey & Stichel, LLP, Baltimore, MD, for Plaintiffs Appellees. Christopher J. Marengo, Law Offices of Christopher J. Marengo, Esq., Bronx, NY, for

6 441 Fed.Appx. 21, 2011 WL (C.A.2 (N.Y.)) (Not Selected for publication in the Federal Reporter) (Cite as: 441 Fed.Appx. 21, 2011 WL (C.A.2 (N.Y.))) Page 2 Cross Defendants Appellees. Michael S. Haber, Law Offices of Michael S. Haber, New York, NY, for Defendant Cross Claimant Appellant. PRESENT: WALKER, DENNY CHIN, and RAY- MOND J. LOHIER, JR., Circuit Judges. SUMMARY ORDER **1 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, 124 S.Ct. 153, 157 L.Ed.2d 44 (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, (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. 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 nowdeceased 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. [1] 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, 2010 WL 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 *23 the 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, FN1 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, (2d Cir.2006) (conversion requires an unauthorized assumption of property belonging to another); Mirvish v. Mott, 75 A.D.3d 269, 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, 84 A.D.3d 921, 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, 646 N.Y.S.2d 76,

7 441 Fed.Appx. 21, 2011 WL (C.A.2 (N.Y.)) (Not Selected for publication in the Federal Reporter) (Cite as: 441 Fed.Appx. 21, 2011 WL (C.A.2 (N.Y.))) Page N.E.2d 1370 (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, 46 A.D.3d 1282, 850 N.Y.S.2d 219, 222 (3d Dep't 2007) (New York courts presume competence at time of performance of challenged action; burden of proving incompetence rests with party asserting incapacity). FN1. 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).) **2 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. 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. [2] 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 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*24 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. C.A.2 (N.Y.),2011. Liberty Life Assur. Co. of Boston v. Bahan 441 Fed.Appx. 21, 2011 WL (C.A.2 (N.Y.)) END OF DOCUMENT 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