The Prudential Insurance Company of America v. Payne

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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THE PRUDENTIAL INSURANCE COMPANY

OF AMERICA,

MEMORANDUM & ORDER

Plaintiff, 20-CV-3683 (JS)(JMW)

-against-

JESSICA PAYNE, et al.,

Defendants.

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APPEARANCES

For Cross-Claimant Jessica A. Payne, Pro Se

Jessica Payne: 2625 Alcatraz Avenue

#103

Berkeley, California 94705

For Cross-Defendant David Schachter, Esq.

Erufadica Kema: Law Offices of Schachter, P.C.

74-09 37th Avenue

Jackson Heights, New York 11372

SEYBERT, District Judge:

Jessica A. Payne (“Payne”) moves pursuant to Rule 56 of

the Federal Rules of Civil Procedure (“Rule”) seeking summary

judgment (hereafter, the “Motion”) (ECF No. 79),1 against Erufadica

Kema (“Kema”). For the reasons that follow, Payne’s Motion is

GRANTED.

1 At the December 14, 2023 Motion Hearing (the “December Hearing”),

the parties were put on notice that the Court could construe

Payne’s pre-motion conference letter, the parties’ 56.1

statements, and any argument made on the record as the motion

itself (see Dec. 13, 2023 Elec. Order Scheduling Proceeding.)

Thus, in its discretion, the Court does so, construing Payne’s

pre-motion conference request as the motion itself. Going

forwards, the Court refers to the pre-motion conference request as

the “Motion.”

FACTUAL BACKGROUND

I. Materials Considered

In connection with Payne’s Motion, the Court has

considered: (1) the Motion; (2) Kema’s Opposition to the Motion

(ECF No. 82); (3) Payne’s Rule 56.1 Statement (Payne’s 56.1 Stmt.,

ECF No. 86); (4) Kema’s Rule 56.1 Counterstatement with additional

facts (Kema’s 56.1 Counterstmt., ECF No. 88); (5) Payne’s Rule

56.1 Counterstatement (Payne’s 56.1 Counterstmt., ECF No. 89); and

Kema’s December 27 supplemental letter addressing standing (Am.

Standing Letter, ECF No. 95). Additionally, at the December

Hearing, the Court afforded both parties an opportunity to expand

upon their arguments in support of, and in opposition to, summary

judgment.2

2 The Court finds the legal arguments: (1) contained in the parties’

Motion and Opposition; (2) contained in Kema’s Amended Standing

Letter; and (3) made on the record at the December Hearing, in

conjunction with (4) the parties’ Rule 56.1 statements and

counterstatements, sufficiently preserves the losing party’s

position for purposes of appeal. The Court’s assessment is

buttressed by the fact that, after affording Kema an additional

opportunity to address, in writing, Payne’s standing arguments,

Kema’s Standing Letter largely consisted of arguments copied and

pasted from her Opposition, which failed to specifically rebut the

standing issues raised by Payne. Cf. In re Best Payphones, Inc.,

450 F. App’x 8, 15 (2d Cir. 2011) (summary order) (affirming

district court’s judgment because the district court did not abuse

its discretion in treating a pre-motion letter as the dispositive

motion when the losing party “had the opportunity to make the

arguments necessary to preserve its [position] for appellate

review” and “ha[d] not pointed to any additional argument it would

have made had it filed full motion papers”).

Unless otherwise stated, a standalone citation to a Rule

56.1 Statement or Counterstatement denotes that either the parties

agree, or the Court has determined, the underlying factual

allegation is undisputed. Further, citation to a party’s Rule

56.1 Statement or Counterstatement incorporates by reference the

document(s) cited therein. The Court deems true undisputed facts

averred to in a party’s Rule 56.1 statement and to which the

opposing party cites no admissible evidence in rebuttal. See

Steward v. Fashion Inst. Of Tech., No. 18-CV-12297, 2020 WL

6712267, at *8 (S.D.N.Y. Nov. 16, 2020) (“[P]ursuant to Local Civil

Rule 56.1 [the movant’s] statements are deemed to be admitted where

[the non-moving party] has failed to specifically controvert them

with citations to the record.” (quoting Knight v. N.Y.C. Hous.

Auth., No. 03-CV-2746, 2007 WL 313435, at *1 (S.D.N.Y. Feb. 2,

2007))); Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881, 2012

WL 4498827, at *2 n.2 (E.D.N.Y. Sept. 28, 2012) (“Local Rule 56.1

requires . . . that disputed facts be specifically controverted by

admissible evidence. Mere denial of an opposing party’s statement

or denial by general reference to an exhibit or affidavit does not

specifically controvert anything.”) “Additionally, to the extent

[a party’s] 56.1 statement ‘improperly interjects arguments and/or

immaterial facts in response to facts asserted by [the opposing

party] without specifically controverting those facts,’ the Court

has disregarded [such] statement[s].” McFarlance v. Harry’s

Nurses Registry, No. 17-CV-6360, 2020 WL 1643781, at *1 n.1

(E.D.N.Y. Apr. 2, 2020) (quoting Risco v. McHugh, 868 F. Supp. 2d

75, 85 n.2 (S.D.N.Y. 2012)). Moreover, to the extent any party

responds she “lacks information sufficient to form a belief as to

the truth of” any statement which the opposing party has supported

with citations to the record, the Court deems such statement

admitted. See Ezagui v. City of N.Y., 726 F. Supp. 2d 275, 285

n.8 (S.D.N.Y. 2010) (deeming statements in party’s 56.1 statement

admitted where opposing party responded with assertions that it

denied knowledge and information sufficient to form a belief as to

the truth of the allegations); AFL Fresh & Frozen Fruits &

Vegetables, Inc. v. De-Mar Food Servs. Inc., No. 06-CV-2142, 2007

WL 4302514, at *4 (S.D.N.Y. Dec. 7, 2007) (“A nonmovant cannot

raise a material issue of fact by denying statements which the

moving party contends are undisputed for lack of ‘knowledge and

information’ in part because discovery allows the party opposing

summary judgment to obtain the facts necessary to determine whether

it must admit or deny them.” (quoting Stepheny v. Brooklyn Hebrew

Sch. for Special Child., 356 F. Supp. 2d 248, 255 n.4 (E.D.N.Y.

2005) (internal quotations omitted))).

II. Facts

A. The Parties and the Alliance Account

Giselle Bollmann (hereafter, “Bollmann”) “was the named

owner of a life insurance account” (hereafter, the “Alliance

Account”) “opened and funded by Plaintiff Prudential Insurance

Company of America” (hereafter, “Prudential”) (Payne 56.1 Stmt.

¶ 1.) Through an Information Request Form, in the event of her

death, Bollmann could designate beneficiaries who would receive

any remaining balance in the Alliance Account. (Payne 56.1 Stmt.

¶ 2.) The Information Request Form states that if Bollmann did

“not designate any beneficiaries, or if all beneficiaries

predecease[d] [her], any balance remaining [would] be paid to

[Bollmann’s] estate.” (Information Request Forms, ECF Nos. 1-2,

1-3, 1-4, Exs. B-D, attached to Prudential Complaint.)

Between September 2010 and May 2016, Bollmann “made

various designations and changes to the beneficiaries of her

Alliance Account.” (Payne 56.1 Stmt. ¶ 2.) The first designation,

made in September 2010, named “two of Ms. Bollmann’s sisters-in-

law, Danyula Bollman and Dorothy Kema, and a cousin-in-law, Sonya

Mueller,” as primary beneficiaries. (Id. ¶ 3(a).) Then, in May

2014, Bollman designated Payne as a secondary beneficiary to the

Alliance Account.3 (Id. ¶ 3(d).) However, in July 2014, Payne

3 Between September 2010 and May 2014 there were two intervening

changes to the beneficiaries of the Alliance Account (see Payne

was named a primary beneficiary of the Alliance Account, together

with Sabina Assmus, and Kirsten Assmus. (Id. ¶ 3(e).) The final

beneficiary designation made by Bollmann, in May 2016, named Sabine

Assmus, and Jessica Payne as co-primary beneficiaries to the

Alliance Account. (Id. ¶ 3(f).) Each beneficiary was entitled to

50% of the proceeds. (Id.) In that designation, Bollmann also

named Kirsten Assmus and Paul Engola as secondary beneficiaries to

the Alliance Account. (Id.)

Payne is Bollmann’s first cousin; the two first met “in

or around 2005 at a cousin’s Christmas party.” (Id. ¶ 4.) After

the death of Payne’s father in 2013, Payne’s and Bollmann’s

relationship grew closer “as they attended salsa and flamenco dance

classes together.” (Id. ¶ 7.) On average, when Bollmann was

alive, Bollmann and Payne communicated with each other on a weekly

basis. (Id. ¶ 8.) Additionally, when Payne was in New York, the

two would frequently dine or shop together. (Id. ¶ 9.) Bollmann

and Payne also traveled together internationally, numerous times,

“including to Hamburg, Germany in or around 2014, Frankfurt and

Hong Kong in or around 2016, and Scotland in 2017 and 2018.” (Id.

¶ 10.) Payne did not have any conversations with Bollmann about

56.1 Stmt. ¶¶ 3(b)-(c)). Neither of these intervening changes

named Kema as a beneficiary (id.)

the Alliance Account or Bollmann’s designation of beneficiaries to

same. (Id. ¶ 11.)

Kema is Bollmann’s half-sister. (Id. ¶ 12.) Despite

periodically listing other siblings as beneficiaries to the

Alliance Account, Kema has never been a listed beneficiary. (Id.

¶¶ 12-13.) Kema does not know why Bollmann never listed her as a

beneficiary. (Id. ¶ 40.) Regarding the extent of her contacts

with Bollmann, Kema testified she could not recall the nature and

frequency of her contact, but that the two contacted each other

“many times.” (Id. ¶ 38.) When asked, Kema was unable to provide

details “about . . . Bollmann’s handling of her own finances and

daily habits after the death of [Bollmann’s] husband”, and further

testified such issues would “be brought up by the appropriate

experts in a court of law.” (Id. ¶ 36.)

B. Bollmann’s Alleged Dementia and Death

Kema lacked personal knowledge concerning Bollmann’s

mental competency and capabilities or any of Bollman’s medical

treatments or examinations. (Id. ¶ 42.) Similarly, Kema did not

have any personal knowledge of, nor could point to any evidence

that, Bollmann suffered from dementia or had received a diagnosis

of dementia. (Id. ¶ 44.) When asked why she believed Bollmann

had suffered from dementia, Kema testified that her family “has an

extensive history with dementia.” (Id. ¶ 45.) When asked to

expound upon the dementia symptoms Kema observed in Bollmann,

Kema’s response was that her family “had a large extensive history

of dementia with many different symptoms.” (Id. ¶ 46.) When

pressed with specific questions about Bollmann’s mental capacity

and her daily habits, Kema was unable to provide specific details.

(Id. ¶ 47.)

Relatedly, “[d]uring her first deposition, . . . Kema

was asked if all documents she planned to use in the case had been

provided;” Kema responded in the affirmative. (Id. ¶ 50.) Since

Kema continuously referred to “notes” she needed to review to

answer certain questions at her second deposition, Payne “again

requested, on the record, that . . . Kema produce any and all

documents” showing Bollmann suffered from dementia “and any

documentation regarding [Bollmann’s] health that pertained to the

case.” (Id. ¶ 51.) In response, Kema provided: (1) a death

certificate for Bollmann’s mother, Rosalie Omodi-Engola

(“Rosalie”); (2) two medication lists for Rosalie; and (3) the

death certificate for Bollmann’s uncle, Williams Stephens. (Id.

¶ 52.) Williams Stephens’ Death Certificate indicates Dementia

was a significant contributing condition to his death but not the

underlying cause. (See Williams Stephens’ Death Certificate, ECF

No. 86-15, Ex. 15, attached to Payne 56.1 Stmt.) Rosalie’s Death

Certificate makes no mention of dementia; rather, it states the

immediate cause of death was cardiopulmonary arrest due to heart

disease and that diabetes was a significant condition contributing

to death. (See Rosalie Omodi-Engola’s Death Certificate, ECF No.

86-15, Ex. 15, attached to Payne 56.1 Stmt.)

On or around April 18, 2018, Bollmann died intestate.

(Id. ¶ 14.) Bollmann was survived by her biological father,

Phillip E. Payne (“Phillip”) (see Phillip Assignment, Ex. G, ECF

No. 88-7, attached to Kema Counterstmt). Bollmann’s death

certificate lists her cause of death as “undetermined” and the

manner of her death as “natural.” (Id.) It makes no mention of

dementia, although autopsy findings were not available to complete

the cause of death. (Id.; see also Kema Counterstmt. ¶ 14.) “On

or around May 16, 2018, . . . Kema wrote a letter to Prudential

requesting that Prudential not release the funds of the Alliance

Account to any listed beneficiary, alleging,” inter alia, that the

designation was made as the result of fraud and/or undue influence.

(Id. ¶ 15.) On June 19, 2018, Payne completed and returned a claim

form, which was sent to her by Prudential, asserting her claim for

the account balance. (Id. ¶ 16.)

On or about July 3, 2018, the State of Connecticut

Probate Court (the “Probate Court”) “granted administration of the

estate of . . . Bollmann to . . . Payne.” (Id. ¶ 17.) As

Bollmann’s surviving biological parent, Phillip “acknowledge[d],

authorize[d] and assign[ed]” his niece, Payne, “to make all

necessary arrangements” for Bollmann; Phillip acknowledged

Bollmann had previously assigned Payne “Power of Attorney and

Executor to be in charge of” Bollmann’s “affairs during her living

incapacitation and death.” (See Phillip Assignment.) On August

10, 2018, through Counsel, Kema submitted another letter to

Prudential representing that she was preparing to file Letters of

Administration for Bollmann’s estate and that there was a hearing

scheduled in the Probate Court pertaining to Kema’s objections to

Payne’s application for Letters of Administration. (See Payne

56.1 Stmt. ¶ 21; see also Aug. 10, 2018 Letter to Prudential, Ex.

I, ECF No. 1-9, attached to Prudential Complaint.) Kema further

represented she had located a doctor who could testify to

Bollmann’s “dementia at the time of the beneficiary designation.”

(Aug. 10, 2018 Letter to Prudential.)

On August 28, 2018, the Probate Court held a hearing in

connection with the administration of the Bollmann estate. (Payne

56.1 Stmt. ¶ 19.) Kema represents, but cites no evidence

confirming, that “[t]he purpose of the August 28, 2018

hearing . . . was to discuss the merits of . . . Payne’s petition

and whether she was entitled to be administrator” of Bollmann’s

estate on behalf of Phillip, who Kema contends abandoned Bollmann

and was therefore an “estranged father.” (See Kema Counterstmt.

¶ 18.) As part of her efforts to challenge Payne’s appointment as

administrator, Kema “submitted to the Connecticut Probate Court a

series of affidavits[4] signed between May 2018 and July 2018 from

numerous individuals.” (Payne 56.1 Stmt. ¶ 18.) The findings of

the Probate Court are not part of the record; however, it is

undisputed that, after the hearing, and continuing to the present,

Payne remains administrator of Bollmann’s estate. (Id. ¶ 19; see

also Dec. Hr’g Tr. 6:16-21.)

4 While the Court declines to address the merits of Kema’s claims

(see infra Part.II), had it done so, the “affidavits,” specifically

those submitted by Dr. Gloria Lindsey Alibaruho (“Alibaruho”),

would have been disregarded. (See First Alibaruho Affidavit, Ex.

6, ECF No. 86-6, attached to Payne 56.1 Stmt.; Second Alibaruho

Affidavit, Ex. 10, ECF No. 86-10, attached to Payne 56.1 Stmt.)

Neither of Alibaruho’s purported “affidavits” is presented in

admissible form. Indeed, there is no indication that the

statements contained in the “affidavits” were made under penalty

of perjury; likewise, there is no jurat or “sworn to me before”

language on the notary stamps affixed to Alibaruho’s statements.

Courts in this Circuit decline to consider such unsworn statements

at the summary judgment stage.

By definition, an affidavit is a sworn

document, declared to be true under the

penalties of perjury. . . . To be considered

in connection with a summary judgment motion,

the rule requires that submissions in the form

of statements be prepared as

affidavits. . . . Failure to submit

materials in this form will cause the

submission to be disregarded by the court in

its consideration of the pending motion.

DeMars v. O’Flynn, 287 F. Supp. 2d 230, 242 (W.D.N.Y. 2003)

(quoting 11 MOORE’S FEDERAL PRACTICE, § 56.14(1)(b) (Matthew Bender 3d

ed.)); see also Persaud v. URS Midwest, Inc., No. 06-CV-3119, 2007

WL 4556908, at *6 (E.D.N.Y. Dec. 21, 2007) (noting that medical

reports were “not presented in an admissible form” because “[t]here

is no jurat, or ‘sworn to me before’ language, on the notary stamp

affixed to the reports”); cf. Flowers v. Abex Corp., 580 F. Supp.

1230, 1233 n.2 (N.D. Ill. 1984) (“Merely notarizing the signature

does not transform a letter into an affidavit.”).

PROCEDURAL HISTORY

On August 13, 2020, Prudential brought the instant

interpleader action, asking the Court to determine to whom the

benefits of the Alliance Account should be paid. (Id. ¶ 24.) In

response, Kema alleged: first, the designations made by Bollman

were made under duress, undue influence, and/or with a lack of

capacity; and, second, Payne had been improperly or fraudulently

appointed administrator of Bollmann’s estate since Payne had not

notified “all necessary parties” of the administration

proceedings. (Id. ¶ 25; see also Kema Answer, ECF No. 10.) Kema

requested “judgment invalidating the beneficiary designations made

by . . . Bollmann on or about July 29, 2014 and May 14, 2016” and

settlement and adjustment of the claims in her favor. (Kema Answer

at 2.) On December 28, 2020, Payne filed her Answer to

Prudential’s Complaint (see Payne Answer, ECF No. 15), which she

amended on January 19, 2021 (see Payne Am. Answer, ECF No. 22.)

Payne argued Kema did not have standing to challenge the

beneficiary designations because she was never a listed

beneficiary and is not an heir to Bollmann’s estate; Payne averred

the proper heirs were properly notified as to the estate’s

administration. (Id. ¶ 26; see also Payne Answer, ECF No. 22.)

Further, Payne “cross-claimed against . . . Kema arguing that the

probate matter was barred by res judicata, as the Connecticut

Probate Court had rejected . . . Kema’s claims[.]” (Id.)

On March 18, 2022, Payne filed a pre-motion conference

request seeking leave to file a summary judgment motion. Kema

opposed the pre-motion conference request. On July 1, 2022, the

Court directed the parties to file their respective Rule 56.1

statements, and counterstatements (see July 1, 2022 Min. Entry,

ECF No. 84), which they did. On October 4, 2023, the Court

scheduled the December Hearing and put the parties on notice that,

at the Court’s discretion, it could construe the parties’ pre-

motion submissions, 56.1 statements, and arguments made on the

record as the summary judgment motion itself. (See Oct. 4, 2023

Elec. Order Scheduling Proceeding.) During the December Hearing,

in addition to expounding upon the arguments made in her pre-

motion submissions, Payne reiterated her standing arguments which

were previously raised in her Answer and Amended Answer. (See

Dec. Hr’g Tr. 4:1-8:14.) The Court permitted Kema the opportunity

to oppose Payne’s standing argument; however, during the hearing,

the Court determined it required further briefing on Kema’s

standing. (See Dec. Hr’g Tr. 13:19-15:17.) As such, the Court

adjourned the December Hearing to allow the filing of supplemental

briefing detailing the basis for Kema’s standing to bring her

claims notwithstanding she was never a listed beneficiary or

Bollmann’s heir. (See Dec. Hr’g Tr. 16:17-25.) A status

conference was scheduled in this case for February 2, 2024. (See

Dec. Hr’g Tr. 23:25-24:20.) On December 27, 2023, Kema filed her

Standing Letter.5 Upon reviewing Kema’s Standing Letter, the Court

adjourned the February 2 status conference, sine die, as it

determined it did “not require any further filings, or arguments”

to render its decision (see Jan. 31, 2024 Elec. Order Adjourning

Proceeding.)6

5 An Amended Standing Letter was filed the same day which was, in

substance, identical to the original.

6 The Court notes that even had it considered the merits of Kema’s

claims, it would have granted summary judgment to Payne. Indeed,

beyond: (1) Kema’s speculative statements that she observed

general symptoms of dementia in Bollmann, and (2) Alibaruho’s

unsworn “affidavit”, which the Court would have declined to

consider (see supra n.4), there was no evidence in the record that

Bollmann suffered from dementia or had received a diagnosis of

dementia, such that, Bollmann’s “mind was so affected as to render

[her] wholly and absolutely incompetent to comprehend and

understand the nature of the transaction.” See N.Y. Life Ins. Co.

v. Brown, No. 19-CV-9437, 2021 WL 325857, at *6-7 (S.D.N.Y. Feb.

1, 2021); see also id. (Applying the contract standard to determine

whether decedent was mentally competent to change the

beneficiaries of his life insurance policy and finding that

“[u]nder the contract standard a person is presumed ‘competent at

the time of the performance of the challenged action and the burden

of proving incompetence rests with the party asserting

incapacity.’” (quoting Genworth Life Ins. Co. of N.Y. v. Dwaileebe,

No. 12-CV-6330, 2017 WL 1046332, at *6 (W.D.N.Y. Mar. 20, 2017))).

Likewise, Kema’s undue influence claim can largely be reduced to

three arguments, that is: (1) Payne was given a power of attorney

over Bollmann and owed her a fiduciary relationship; (2) Payne and

Bollmann only knew each other for a short time; and (3) Bollmann

suffered from dementia.

Per New York state law, if a party alleges

undue influence, it must show ‘that the

influence exercised amounted to a moral

coercion, which restrained independent action

and destroyed free agency, or which, by

importunity which could not be resisted,

constrained the [victim] to do that which was

DISCUSSION

I. Legal Standard

A. Summary Judgment

Pursuant to Rule 56(a), “[a] court shall grant summary

judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(a). “A fact is ‘material’ for

these purposes when it might affect the outcome of the suit under

the governing law.” Adamson v. Miller, 808 F. App’x 14, 16 (2d

Cir. 2020). Additionally, “‘[a]n issue of fact is ‘genuine’ if

the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.’” Id. (quoting Jeffreys v. City of N.Y.,

426 F.3d 549, 553 (2d Cir. 2005)). “If, as to the issue on which

summary judgment is sought, there is any evidence in the record

from which a reasonable inference could be drawn in favor of the

against his free will and desire, but which he

was unable to refuse or too weak to resist.

Metropolitan Life Ins. Co. v. Giscombe, 19-CV-4463, 2022 WL

2467066, at *9 (E.D.N.Y. Jan. 21, 2022) (quoting Wilton Reassurance

Life Co. of N.Y. v. Smith, 21-CV-5131, 2015 WL 631973, at *15

(E.D.N.Y. Feb. 13, 2015)). Here, Kema provides no affidavit or

testimony from any witness that contradicts Payne’s testimony that

Payne and Bollmann never discussed the Alliance Account or

Bollmann’s designations to same. It is axiomatic that if Bollmann

and Payne never discussed the challenged beneficiary designations

Payne could not have exercised undue influence over Bollmann to

force Bollmann into changing them. Kema’s undue influence claim

is purely speculatory, such speculatory and unsupported assertions

at this stage cannot create triable issues of fact.

opposing party, summary judgment is improper.” Hetchkop v.

Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997).

Moreover, “the court is not to make assessments of the credibility

of witnesses” on a motion for summary judgment, as “[c]redibility

assessments, choices between conflicting versions of events, and

weighing of the evidence are matters for the jury.” Id.

On a motion for summary judgment, the court considers

“the pleadings, depositions, answers to interrogatories and

admissions on file, together with any other firsthand information

including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d

147, 156 (2d Cir. 2011). Further, while the court “may consider

other materials in the record,” it “need consider only the cited

materials” in ruling on a summary judgment motion. FED. R. CIV. P.

56(c)(3); see also Pennington v. D’Ippolito, 855 F. App’x 779, 782

(2d Cir. 2021) (“[I]n ruling on a summary judgment motion the court

need consider only the cited materials in the parties’

submissions.” (internal citations and alterations omitted)).

In reviewing the record, “the court is required to

resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is

sought.” Sheet Metal Workers’ Nat’l Pension Fund v. Vardaris Tech.

Inc., No. 13-CV-5286, 2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23,

2015) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.

1997)). When drawing inferences from evidence in the record in

favor of the non-moving party, however, a court should not accord

the non-moving party the benefit of “unreasonable inferences, or

inferences at war with undisputed facts.” Berk v. St. Vincent’s

Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005)

(quoting County of Suffolk v. Long Island Lighting Co., 907 F.2d

1295, 1318 (2d Cir. 1990)).

“Once the movant has ‘demonstrat[ed] the absence of a

genuine issue of material fact . . . the onus shifts to the party

resisting summary judgment to present evidence sufficient to

satisfy every element of the claim.’” Pennington, 855 F. App’x at

781 (alteration in original) (quoting Holcomb v. Iona Coll., 521

F.3d 130, 137 (2d Cir. 2008)). To do this, “[t]he non-moving party

is required to ‘go beyond the pleadings’ and ‘designate specific

facts showing that there is a genuine issue for trial.’” Id.

B. Standing

Article III of the Constitution extends federal courts’

jurisdiction only to cases and controversies. U.S. CONT. art. III,

§ 2. The Supreme Court has interpreted this to mean that federal

jurisdiction exists only when the plaintiff has “a personal stake

in the outcome of the controversy.” Warth v. Seldin, 422 U.S.

490, 498 (1975) (internal quotations omitted). To show standing,

a plaintiff must demonstrate he has “suffered an injury in fact

that is concrete, particularized, and actual or imminent,” that

“was likely caused by the defendant,” and that “would likely be

redressed by judicial relief.” TransUnion LLC v. Ramirez, 594

U.S. 413, 423 (2021). “For purposes of Article III standing, an

‘injury in fact’ is ‘an invasion of a legally protected interest

which is (a) concrete and particularized[ ] and (b) actual or

imminent, not conjectural or hypothetical.’” Lacewell v. Off. of

Comptroller of Currency, 999 F.3d 130, 141 (2d Cir. 2021) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

II. Analysis

Kema asserts she has standing to challenge Bollmann’s

beneficiary designations because, although Kema was never a listed

beneficiary, she is entitled to a distribution of Bollmann’s

estate7 pursuant to E.P.T.L. § 4.1-1.8 (Am. Standing Letter at 4.)

Specifically, Kema contends Payne “was improperly and/or

7 Kema does not address the fact that invalidation of the May 2016

designation, either on grounds of mental competency or undue

influence, would not result in the proceeds of the Alliance Account

automatically being paid to Bollmann’s estate. Instead, and as

noted by Prudential, the invalidation of a later beneficiary

designation results in the proceeds of the account being

distributed in a manner consistent with the previously valid

designation. (See Prudential Complaint, ¶ 23 (“If the Court were

to determine that the May 2016 designation is legally invalid, the

Account Balance would be payable to Sabine Assmus, Kirsten Assmus,

and Jessica Payne, in the shares stated pursuant to the immediately

prior beneficiary designation.” (emphasis added)).) Consequently,

by Prudential’s understanding of the Alliance Account,

invalidation of the May 2016 designation would result in the July

29, 2014 Information Request Form becoming the operative

designation (id.) Similarly, if both the May and July designations

were invalid, then the prior May 28th, 2014 designation would

become the operative designation, and so on, until either: (1) the

beneficiaries in the last valid designation predeceased Bollmann;

or (2) all of Bollmann’s designations were found to be invalid.

8 E.P.T.L. § 4-1.1 is New York’s intestacy statute (the “Intestacy

Statute”), which provides that where “property of a decedent is

not disposed of by will”, it is to be distributed as follows:

If a decedent is survived by:

(1) A spouse and issue, fifty thousand

dollars and one-half of the residual to

the spouse, and the balance thereof to

the issue by representation.

(2) A spouse and no issue, the whole to the

spouse.

(3) Issue and no spouse, the whole to the

issue, by representation.

(4) One or both parents, and no spouse and no

issue, the whole to the surviving parent

or parents. . . .

(5) Issue of parents, and no spouse, issue,

or parent, the whole to the issue of the

parents, by representation

fraudulently appointed administrator” of Bollmann’s estate because

Payne, “as the representative of” Bollmann’s “biological father,

Phillip . . . had no standing as either a proposed administrator

or distributee of the decedent’s estate.” (Id.) Kema asserts

Bollmann died intestate without spouse or issue. (Id.) In an

attempt to sidestep E.P.T.L. § 4.1-1(4) (see supra n.6), Kema

contends Phillip should be disqualified from inheriting Bollmann’s

estate because he “abandoned [Bollmann] as a parent

and . . . abdicated his duties as the decedents [sic] parent.”9

(Id.) Consequently, Kema claims, as Bollmann’s surviving sibling

and next in line to inherit Bollmann’s estate through the Intestacy

Statute, she is entitled to distribution of Bollmann’s estate

pursuant to E.P.T.L. § 4-1.1(5). (Id.)

E.P.T.L § 4-1.1(a).

9 E.P.T.L. § 4-1.4 concerns disqualification of parents to take

intestate shares of deceased children. In pertinent part E.P.T.L.

§ 4-1.4 states:

No distributive share in the estate of a

deceased child shall be allowed to a parent if

the parent, while such child is under the age

of twenty-one years: (1) has failed or refused

to provide for the child or has abandoned such

child, whether or not such child dies before

having attained the age of twenty-one years,

unless the parental relationship and duties

are subsequently resumed and continue until

the death of the child[.]

E.P.T.L. § 4-1.4(a)(1).

On paper, Payne initially raised Kema’s lack of standing

to challenge the beneficiary designations in her initial Answer

(see Payne Answer at 6.) Payne’s standing argument was reiterated

in her Amended Answer (see Payne Am. Answer at 7-8), but neither

Payne, nor any other party in this case, briefed the issue as part

of a motion to dismiss.10 Nonetheless, Payne highlighted Kema was

never a beneficiary to the Alliance Account or an heir to

Bollmann’s estate. (Id.) Payne further expounded that the Probate

10 To the extent Kema appears to suggest that Payne’s standing

argument was waived (see Am. Standing Letter at 4), the Court

rejects this argument since “[t]he question of standing is not

subject to waiver.” United States v. Hays, 515 U.S. 737, 742

(1995). Rather, “[b]ecause the question of standing goes to the

constitutional limitations on the judicial Power of the United

States, which is limited to resolving Cases or Controversies, we

are entitled at any time sua sponte to delve into the issue of

standing even if [a party] do[es] not raise the issue.” Green Haven

Prison Preparative Meeting of Religious Soc'y of Friends v. N.Y.

State Dep't of Corr. & Cmty. Supervision, 16 F.4th 67, 78 (2d Cir.

2021) (quotation marks and case citation omitted) (quoting in part

U.S. CONST. art. III); see also Carter v. HealthPort Techs., LLC,

822 F.3d 47, 56 (2d Cir. 2016) (explaining standing “may be raised

by a party, or by a court on its own initiative, at any stage in

the litigation” (quoting Arbaugh v. Y & H Corp., 546 U.S. 567, 571

(2004))); cf. Partner Reinsurance Co. Ltd. v. RPM Mortg., Inc.,

No. 18-CV-5831, 2020 WL 2904862, at *3 (S.D.N.Y. June 3, 2020)

(denying defendants’ motion to dismiss for lack of subject matter

jurisdiction, but noting defendants had a “right to argue that

[the plaintiff] lacks contractual standing to pursue the relief

sought here in a later motion for summary judgment or bench

trial”); accord Conservation L. Found., Inc. v. ExxonMobil Corp.,

578 F. Supp. 3d 119, 119 (D. Mass. Dec. 22, 2021) (“[S]tanding can

be raised at any time. For example, if a motion to dismiss for

lack of standing is denied, a case may nevertheless be properly

dismissed for lack of standing on a motion for summary judgment or

after trial.” (citation omitted)).

Court had previously adjudicated Kema’s administration claims.11

(See Dec. Hr’g Tr. 6:5-23; 18:5-6.) Payne contended that the

Probate Court’s ruling was res judicata here. (Id.)

At the December Hearing, Payne re-emphasized (1) her

standing arguments, and (2) her contention that Kema’s arguments

were previously adjudicated during the August 28 status conference

before the Probate Court. (Dec. Hr’g Tr. 5:18-6-23.) Payne also

made clear that her administration of Bollmann’s estate continues

to the present day. (Id.) Despite having the opportunity to do

so, Kema did not dispute that the Probate Court had previously

adjudicated her arguments relating to the administration of

Bollmann’s estate during the August 28 Status Conference.12

Indeed, Kema’s counsel tacitly acknowledged this was the case.

(See Dec. Hr’g Tr. 18:3-6.)

Even accepting as true, for the purposes of arguendo,

that: (1) the challenged beneficiary designations are invalid,

either because of Bollmann’s mental incompetency or due to undue

11 The Court understands Payne’s argument in this regard to pertain

to Kema’s present claims regarding her status as heir, as well as

Phillip’s rights, and the extent to which they were, or were not,

forfeited, under the Intestacy Statute. (See Dec. Hr’g Tr. 16:23-

17:2; 18:5-6.)

12 Kema’s silence in this regard is not unique to the December

Hearing, since her Rule 56.1 Counterstatement, likewise, fails to

dispute Payne’s contention that the arguments relating to the

administration of Bollmann’s estate, which Kema presently raises,

were previously adjudicated by the Connecticut Probate Court. (See

Kema 56.1 Counterstmt. ¶¶ 17-19.)

influence; (2) any remaining designation is invalid because it

names beneficiaries that predeceased Bollmann; and (3) as a result,

the balance of the Alliance Account should be paid to Bollmann’s

estate, the Court finds Kema cannot show a concrete and

particularized injury for purposes of standing. See Arroyo v. PHH

Mortg. Corp., No. 13-CV-2335, 2014 WL 2048384, at *5 (E.D.N.Y. May

19, 2014) (“A plaintiff must allege personal injury fairly

traceable to the defendant’s allegedly unlawful conduct and likely

to be redressed by the requested relief.” (quoting Lujan, 504 U.S.

at 560)).

As an initial matter, there is no basis for Kema to argue

she was injured by the challenged designations to the Alliance

Account because Kema was never, at any point, a listed beneficiary

with an interest in the Account. Instead, Kema’s claimed injury

is premised upon her belief she should be a beneficiary of

Bollmann’s estate. Kema contends that, as a beneficiary to the

estate, she would be injured if the disputed funds are paid to

Payne, and the other designated beneficiaries of the Alliance

Account, because the funds should become part of Bollmann’s estate.

However, the Court finds the injury Kema alleges is not personal

to her, but, instead, a speculative injury to Bollmann’s estate.

Nor is Kema able to establish standing to bring her claim on behalf

of Bollmann’s estate because she has not established her rights as

a beneficiary to the estate. Cf. Bartone v. Podbela, No. 17-CV-

3039, 2018 WL 1033250, at *8 (E.D.N.Y. Feb. 23, 2018) (granting

dismissal motion where plaintiff’s alleged injury was that “the

Decedent’s estate was deprived of certain monies” but where

plaintiff had not proven he was an estate beneficiary with

standing to pursue a claim on behalf of the estate); see also

Yien-Koo King v. Wang, No. 14-CV-7694, 2017 WL 2656451, at *5

(S.D.N.Y. June 20, 2017) (holding plaintiff did not have standing

to bring claims on behalf of estate where subject wills remained

contested and plaintiff’s status as a beneficiary of the estate

had not yet been determined).

“[A]bsent extraordinary circumstances,” actions on

behalf of an estate “may only be brought by an executor or

administrator of an estate.” Thea v. Kleinhandler, No. 13-CV-4895,

2014 WL 2111637, at *5 (S.D.N.Y. May 13, 2014) (citation omitted)

(collecting cases). “[E]xtraordinary circumstances may be

implicated where the executor is allegedly directly involved in

purported egregious conduct and self-dealing that negatively

impacts the potential assets of the estate.” Id. (quoting Lewis

v. DiMaggio, 115 A.D.3d 1042, 1044 (3rd Dep’t 2014) (alteration in

original)). “Under those extraordinary circumstances, actions on

behalf of an estate must be brought by beneficiaries or legatees.”

Bartone, 2018 WL 1033250, at *8 (citing Witzenburg v. Jurgens,

2007 WL 9710763, at *9 (E.D.N.Y. Mar. 1, 2007)).

Thus, while Payne is the Administrator of Bollman’s

estate, because Kema is neither a beneficiary nor a legatee of the

estate, even if, arguendo, extraordinary circumstances might have

existed warranting challenging Payne’s administration of the

estate, Kema would be ineligible to bring an action on behalf of

the estate to make such a challenge. Moreover, and of

significance, Kema does not dispute that the Probate Court

previously adjudicated Kema’s claims at the August 28 Hearing.

Further, as stated by the Court at the December Hearing, the

Probate Court’s ruling on this issue is res judicata here. See

Barash v. N. Tr. Corp., No. 07-CV-5208, 2009 WL 605182, at *7

(E.D.N.Y. Mar. 6, 2009) (“Under the doctrine of res judicata,

otherwise known as claim preclusion, a final judgment on the merits

of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that

action. The doctrine applies only if (1) the previous action

involved an adjudication on the merits; (2) the previous action

involved the [parties] or those in privity with them; and (3) the

claims asserted in the subsequent action were, or could have been,

raised in the prior action.” (internal quotations and citations

omitted)).

Additionally, even if the Probate Court’s determinations

were not res judicata, this Court is without jurisdiction to:

(1) declare Phillip an “estranged parent” within the meaning of

E.P.T.L. § 4-1.4(a)(1); (2) subsequently determine Kema is a

beneficiary to Bollmann’s estate pursuant to E.P.T.L. § 4-1.1; or

(3) find Payne’s Letters of Administration were fraudulently

obtained. Indeed, such determinations would implicate the probate

exception to federal jurisdiction.13 See Kaufman v. Jetson

Electric Bikes, LLC, No. 22-CV-3765, 2024 WL 66036, at *3 (E.D.

Pa. Jan. 5, 2024) (declining to “apply the intestate law of

forfeiture and hold that [biological parent] deserted [child]

within the meaning of” the Pennsylvania intestate statute because,

inter alia, “such a determination is barred by the probate

exception”); see also id. (“Applying the intestate law of

forfeiture to determine who is an heir and who is entitled to take

from the estate places this matter squarely in the second probate

exception by endeavoring to administer an estate.” (citing Thorpe

v. Borough of Thorpe, No. 3:CV-10-1317, 2013 WL 1703572, at *7

13 “The probate exception reserves to state probate courts the

probate or annulment of a will and the administration of a

decedent’s estate; it also precludes federal courts from

endeavoring to dispose of property that is in the custody of a

state probate court.” Architectural Body Rsch. Found. v.

Reversible Destiny Found., 335 F. Supp. 3d 621, 633 (S.D.N.Y. 2018)

(quoting Marshall v. Marshall, 547 U.S. 293, 311-12 (2006)

(emphasis added)); cf. King v. Shou-Kung Wang, 663 F. App’x 12, 13

(2d Cir. 2016) (“Post-Marshall, the probate exception is to be

construed narrowly, such that unless a federal court is endeavoring

to (1) probate or annul a will, (2) administer (or invalidate the

administration of) an estate, or (3) assume in rem jurisdiction

over property that is in the custody of the probate court, the

probate exception does not apply.” (citing Leftkowitz v. Bank of

N.Y., 528 F.3d 102, 105-06 (2d Cir. 2007) (emphasis added))).

(M.D. Pa. Apr. 19, 2013), rev’d on other grounds, 770 F.3d 255 (3d

Cir. 2014))).

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that Payne’s

Motion for Summary Judgment (ECF No. 79) is GRANTED and Kema’s

claims are DISMISSED. The Clerk of Court is directed to disburse

the funds as follows:

First, in accordance with the parties’ November

Settlement Agreement (ECF No. 54): (1) $12,048.48 to Sabine

Assmus; and (2) $12,048.48 to Kirsten Assmus. Checks reflecting

these dispersal amounts shall be mailed to the parties at their

respective addresses of record, to wit:

Sabine Assmus

Meiner Str. 47b

Weinbohla 01689

Germany

Kirsten Assmus

Meiner Str. 49

Weinbohla 01689

Germany

Second, the remaining balance of funds deposited into

the Court, including, but not limited to, any and all interest

accrued on the funds, if any, to Jessica A. Payne. A check

reflecting these dispersal amounts shall be mailed to Jessica A.

Payne at her address of record, to wit:

Jessica A. Payne

2625 Alcatraz Avenue, #103

Berkeley, California 94705

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: February 20, 2024

Central Islip, New York