# The Prudential Insurance Company of America v. Payne

> District Court, E.D. New York · February 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10311254

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311254

## How later opinions describe it (automated extraction)

- 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))

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA,
MEMORANDUM & ORDER
Plaintiff, 20-CV-3683 (JS)(JMW)

-against-

JESSICA PAYNE, et al.,

Defendants.
--------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311254. Public record. Not legal advice.