Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

July 1, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


This action concerns an annuity that plaintiff Rosa Dina Macaluso ("Rosa Dina") purchased from defendant United States Life Insurance Company ("U.S. Life") in 1992. In 2000, plaintiff requested a distribution of the accrued amount of the annuity, and, following instructions conveyed by plaintiff's estranged husband, defendant Gaetano Macaluso ("Gaetano"), and his daughter, third-party defendant Rosalinda Macaluso ("Rosalinda"), U.S. Life deposited the distribution into a bank account held jointly by Rosa Dina and Gaetano. Gaetano then withdrew the entirety of the distribution and placed the funds into an account held in his name only. Rosa Dina brought this action against U.S. Life for breach of contract and negligence, and against Gaetano for conversion and breach of fiduciary duty. U.S. Life cross-claimed against Gaetano for conversion and unjust enrichment, and Gaetano counterclaimed against Rosa Dina for the recoupment of monies allegedly withdrawn by Rosa Dina from joint accounts. Rosa Dina now moves for summary judgment on her breach of contract claim against U.S. Life and on Gaetano's counterclaims, and U.S. Life moves for summary judgment or, in the alternative, injunctive relief, on its cross-claims against Gaetano. For the reasons discussed below, plaintiff's motions will be granted as against both U.S. Life and Gaetano. U.S Life's motion on its cross-claims against Gaetano will also be granted.


  Rosa Dina and Gaetano Macaluso married in 1979 and resided together at 150-26 Eighth Avenue, Whitestone, New York, until 1995, when the couple became estranged and Rosa Dina moved to Italy. Gaetano continues to reside at the Whitestone address. In October 1992, Rosa Dina purchased a group single premium deferred annuity (the "Annuity") from U.S. Life for $81,000, listing her address as 150-32 Eighth Avenue, Whitestone, New York.*fn1 In exchange for this premium, U.S. Life issued an annuity contract bearing certificate number BA0374353V (Affidavit of Bruno Cilio, Ex. A). The contract provides for withdrawals only upon written request, and similarly requires that any assignment or other instructions are valid only if delivered in writing. (Id.)

  Rosa Dina moved to Italy in 1995 and currently resides in Vicari, Italy. Since at least 1998, U.S. Life has been aware of Rosa Dina's residence in Italy and has regularly sent communications regarding the Annuity to her Italian address. (Cilio Aff., Ex. D.) In December 1999, Rosa Dina requested a partial withdrawal of $16,000 from the Annuity by sending an Annuity Service Request form to U.S. Life, listing her address in Italy and directing that payment be made to a bank account there. (Affidavit of Rhonda Spence, Ex. B.) U.S. Life sent the $16,000 payment to the designated Italian account and Rosa Dina duly received it. (Spence Aff. ¶¶ 3-4.)

  In March 2000, Rosa Dina requested a withdrawal of the total remaining balance on the Annuity by sending a second Annuity Service Request to U.S. Life, again listing the Italy address and the Italian bank account to which U.S. Life had sent the previous withdrawal. (Cilio Aff., Ex. B.) However, U.S. Life neither followed Rosa Dina's written instructions, as required by the Annuity contract, nor sought written clarification of any ambiguities from Rosa Dina. Instead, on April 7, 2000, a representative of U.S. Life, Lauren Nguyen, called the Whitestone phone number listed on the 1992 Annuity application. When Gaetano answered the phone, Nguyen told him that she was having trouble reading Rosa Dina's instructions on the Annuity Service Request and needed to know where to send the requested withdrawal of approximately $96,000. Gaetano told Nguyen that Rosa Dina was in Italy, but that he would call Rosa Dina the next day, Saturday, and ask her what to do, and Nguyen agreed to call Gaetano back to receive instructions regarding the method of distribution. (Gaetano's Rule 56.1 Statement ¶¶ 3-9 and Ex. B.) Telephone records indicate that Gaetano did place a call to Rosa Dina's phone number in Italy on the following day, although the nature of any conversation is disputed. (Id.)

  Early the following week, at the appointed time, Nguyen called Gaetano again and was told, first by Gaetano and then again by his daughter Rosalinda, that Gaetano had spoken with Rosa Dina and that she wanted the distribution sent to a Citibank account in Whitestone, held jointly by Gaetano and Rosa Dina. (Id.) Nguyen noted this instruction on the back of the Annuity Service Request form (Cilio Aff., Ex. B), and a check made out to Rosa Dina for $96,231.86 was sent to the joint account (Cilio Aff., Ex. E). Gaetano promptly withdrew the full amount and deposited it in an account held in his name only. (Affidavit of Randi Knepper, Ex. B at 15-16.)

  After U.S. Life sent the check to Citibank, it sent two written confirmations of the distribution, both addressed to Rosa Dina: one to the Whitestone address where Gaetano resides, and one to the Whitestone address listed on the 1992 Annuity application. (Spence Aff., Ex. F.) No notice was sent to the Italian address provided by Rosa Dina on both of her Annuity Service Requests, and used by U.S. Life to correspond with Rosa Dina since at least 1998. Thereafter, Rosa Dina sent another written instruction to U.S. Life, requesting that it stop payment on the check sent to Citibank and repeating the direction of the Annuity Service Request that any distribution be sent to her in Italy. (Spence Aff., Ex. G.) Following the refusal of both U.S. Life and Gaetano to deliver the Annuity proceeds to her, Rosa Dina filed the present action in this Court on April 1, 2003.*fn2 (Knepper Aff., Ex. A.) DISCUSSION

  I. Standard on Summary Judgment

  Summary judgment must be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law," and an issue of fact is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in its favor. Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).

  To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[C]onclusory allegations or unsubstantiated assertions" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289 (1968)).

  II. Breach of Contract

  In her motion for summary judgment on the breach of contract claim against U.S. Life, plaintiff argues that U.S. Life breached the Annuity contract by failing to comply with her express written instructions in the Annuity Service Request regarding the method of distribution. Instead, U.S. Life distributed the withdrawal to an account held jointly by Rosa Dina and Gaetano, where the funds could be, and were, withdrawn by Gaetano. (P. Mem. 4.)

  To establish a breach of contract claim under New York law, a plaintiff must show: (1) a valid contract; (2) plaintiff's performance; (3) defendant's failure to perform; and (4) damages resulting from the breach. See, e.g., Furia v. Furia, 498 N.Y.S.2d 12, 13 (2d Dep't 1986); 22A N.Y. Jur.2d Contracts § 432. U.S. Life does not dispute that the Annuity created a valid contract and that Rosa Dina performed her obligations under it. However, U.S. Life contends that Rosa Dina has failed to establish the third and fourth elements of a breach of contract. First, U.S. Life asserts there is a material issue of fact as to whether Gaetano was authorized to act as Rosa Dina's agent with respect to the Annuity, and thus whether U.S. Life was in breach when it followed his instructions regarding distribution. (U.S. Life Mem. 5.) Second, it asserts that any mistake by U.S. Life was a "harmless error," and Rosa Dina has suffered no damages, because the Annuity was purchased with "marital property" and the distribution went to an account held jointly by Rosa Dina and Gaetano. (Id.) Both of these arguments are fatally flawed and do not defeat Rosa Dina's motion for summary judgment.

  A. Gaetano's Alleged Agency

  U.S. Life first argues that Rosa Dina has not established its breach because there is a material issue of fact as to whether Gaetano was authorized to act as Rosa Dina's agent with respect to the Annuity. Gaetano testified that he was acting on Rosa Dina's instructions, and Rosa Dina testified that he was not. (U.S. Life Mem. 3, 6.) As an initial matter, even assuming arguendo that Gaetano was authorized to act as Rosa Dina's agent, the Annuity contract drafted by U.S. Life explicitly states that U.S. Life will distribute withdrawals only upon written instruction from the Annuity owner, and that any change in ownership or any assignment must also be communicated in writing in order to be binding. (Cilio Aff., Ex. A.) When U.S. Life elected to distribute the Annuity proceeds based solely on oral communications, particularly communications that contradicted the express written instructions of the Annuity owner, it breached the contract, regardless of the authority of the person providing the oral instructions.

  Moreover, U.S. Life cannot successfully maintain that it acted pursuant to the instructions of an agent, because under New York law a principal-agent relationship can only be created by a manifestation of consent by the principal that the agent should act on her behalf, and that condition is not satisfied here. See New York Marine & Gen'l Ins. Co. v. Tradeline LLC, 266 F.3d 112, 122 (2d Cir. 2001); 2A N.Y. Jur.2d Agency §§ 3, 20. A third party who deals with a purported agent has the burden of proving the existence of the agency, see, e.g., In re Shulman Transport Enterprises, Inc., 33 B.R. 383, 385 (S.D.N.Y. 1983), and where that party has relied on the act of an ostensible agent it must, in order to charge the principal, prove the authority under which the agent acted, and demonstrate that the words or conduct of the principal, directed to the third party, have caused the third party to reasonably believe that the agent has the authority to act for the principal. Carte Blanche (Singapore) Ltd. v. Diner's Club Int'l, Inc., 758 F. Supp. 908, 919-920 (S.D.N.Y. 1991); Ford v. Unity Hospital, 32 N.Y.2d 464, 472 (1973); Fleet Credit Corp. v. Cabin Service Co., 596 N.Y.S.2d 801, 803 (1st Dep't 1993); 2A N.Y. Jur.2d Agency §§ 28, 99. The acts or statements of the ostensible agent alone cannot serve to create an agency relationship on which third parties are entitled to rely. Gumpert v. Bon Ami Co., 251 F.2d 735, 739 (2d Cir. 1958); Levine v. Levine, 590 N.Y.S.2d 439, 444 (1st Dep't 1992) ("the fact of agency or the extent of his powers may not be established by the representations of the agent") (quoting Bussing v. Lowell Film Productions, Inc., 253 N.Y.S. 719, 720 (3d Dep't 1931).

  In this case, U.S. Life has not presented a single piece of evidence that Rosa Dina took any action or made any statements that either vested Gaetano with actual authority to alter the manner of distribution of the Annuity proceeds, or cloaked Gaetano with the apparent authority to act as her agent regarding the Annuity proceeds. On the contrary, everything known to U.S. Life at the time of the Annuity distribution indicates the opposite: (i) only Rosa Dina's name is on the Annuity application, including "Estate of Rosa Dina Macaluso" as the named beneficiary; (ii) nothing in U.S. Life's files indicates that it ever communicated with, or received instruction from, anyone other than Rosa Dina regarding the Annuity; (iii) U.S. Life's own records indicate that for several years prior to the March 2000 Annuity Service Request, Rosa Dina resided in Italy and received all communications from U.S. Life at that address, not at the Whitestone address where U.S. Life called Gaetano; (iv) just three months before receiving the March Annuity Service Request, U.S. Life had processed another Annuity Service Request from Rosa Dina and sent the withdrawal to a bank account in Italy, where Rosa Dina resided; (v) even accepting U.S. Life's position that the March Annuity Service Request's "method of distribution" instruction was illegible (although the face of the document reveals this to be false (e.g., Cilio Aff., Ex. B; Gaetano's Rule 56.1 Statement, Ex. A)), nothing written anywhere on the form indicates that the Whitestone address, the Whitestone telephone number, or the Citibank account to which the distribution was ultimately sent were viewed by Rosa Dina as acceptable alternatives to her Italy address or bank account. In addition, U.S. Life made no effort whatsoever to contact Rosa Dina, either by phone or in writing, before carrying out Gaetano's instructions to send the distribution to the Citibank account. On this record, no reasonable fact-finder could conclude that U.S. Life has met its burden of proving that, due to the statements, acts or omissions of Rosa Dina, it reasonably relied on Gaetano's actual or apparent authority to act as Rosa Dina's agent regarding the Annuity, and thus is not liable for breach of its Annuity contract with Rosa Dina.

  U.S. Life's attempt to avoid summary judgment by pointing to Gaetano's testimony regarding his alleged conversation with Rosa Dina is unavailing. No material factual dispute is created where the sole evidence of agency is the statements of the purported agent; the self-serving testimony of an agent is not competent or admissible against the alleged principal to establish an agency relationship absent some conduct or statements by the principal that establish a prima facie case of agency. See Tarstar Shipping Co. v. Century Shipline, Ltd., 451 F. Supp. 317, 323 (S.D.N.Y. 1978); Siegel v. Kentucky Fried Chicken of Long Island, Inc., 488 N.Y.S.2d 744, 747 (2d Dep't 1985); Hirsch v. Badler, 162 N.Y.S.2d 720, 720 (2d Dep't 1957). New York courts have not hesitated to grant summary judgment where the actions or statements of the purported agent were the only evidence of agency or of apparent authority, because such evidence, standing alone, is insufficient as a matter of law to charge the alleged principal with the alleged agent's actions. See, e.g., Network Management Services Group, Inc. v. Rosenkrantz Lyon & Ross, Inc., 622 N.Y.S.2d 511, 584-85 (1st Dep't 1995); Fleet Credit Corp., 596 N.Y.S.2d at 803-04. Likewise, summary judgment against U.S. Life is appropriate here.

  B. "Harmless Error"

  U.S. Life next claims that Rosa Dina has suffered no damages because U.S. Life's breach of its obligation to distribute the Annuity proceeds in accordance with her written instructions was "harmless error." (U.S. Life Mem. 7.) U.S. Life argues that the $81,000 used by Rosa Dina to purchase the Annuity was marital property, that the proceeds of the Annuity were therefore marital property, and thus that Rosa Dina has not been damaged and at most has a marital dispute with her husband, Gaetano, for which U.S. Life cannot be held liable. (Id. 7-8.) This argument is meritless.

  Modern courts have rejected the traditional "common law fiction" that husband and wife are one person in the eyes of the law. United States v. Craft, 535 U.S. 274, 281 (2002) (noting that "that person, practically speaking, was the husband"). Even in 1931, the Supreme Court recognized that married women could own property separate from their husbands and do with it what they wished, and that even government taxing authorities had no power to ignore or override that independent status. Hoeper v. Tax Commission, 284 U.S. 206 (1931). It hardly falls to U.S. Life to decide for itself that paying an Annuity distribution to an owner's husband satisfies its contractual obligation to the owner. Rosa Dina made a simple contract with U.S. Life — she paid a premium and, in exchange, would receive that premium back at some point in the future, with a specified amount of interest. That contract did not include an agreement to purchase a lawsuit to secure the contractual distribution, should U.S. Life decide that, in its judgment, someone else is also entitled to those funds for some reason outside of the contract. That the someone else in this instance is Rosa Dina's husband does not alter the analysis or relieve U.S. Life from liability.

  U.S. Life's citations to New York Domestic Relations Law and arguments as to how it believes a court in a divorce action would treat the money used for the premium or the Annuity proceeds are irrelevant, whether or not they are correct.*fn3 U.S. Life is not a family court judge presiding over a divorce action, nor has it been hired by the Macalusos as an arbitrator. The Annuity contract requires U.S. Life to pay the proceeds to Rosa Dina or to her estate as named beneficiary, in the manner specified in writing by Rosa Dina. As a result of U.S. Life's failure to follow those written instructions, Rosa Dina has neither the possession nor use of those proceeds — a hornbook example of damages resulting from contractual breach.

  III. Unjust Enrichment and Conversion

  U.S. Life, in turn, moves for summary judgment on its cross-claims against Gaetano for unjust enrichment and conversion. Unjust enrichment is an equitable remedy that requires only a showing that (1) the defendant benefitted; (2) at the plaintiff's expense; and (3) "equity and good conscience" require restitution. Kay v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000). New York courts have repeatedly held that payments directed by mistake to the wrong party are recoverable on a theory of unjust enrichment, even where the payor's negligence is the cause of the mistaken payment. See, e.g., Bank of New York v. Spiro, 700 N.Y.S.2d 207, 208 (2d Dep't 1999). Clearly, Gaetano has benefitted at U.S. Life's expense, since Gaetano currently holds the Annuity proceeds that belong to Rosa Dina, and, as noted above, U.S. Life is contractually obligated to deliver those same proceeds to Rosa Dina. If Gaetano is not required to return the Annuity proceeds to U.S. Life, it will be left making double payment on the Annuity, solely because its representative placed unwarranted trust in Gaetano's representations of agency, and Gaetano will receive a windfall. This result is plainly contrary to equity and good conscience.

  Gaetano has no countervailing equitable claim. As discussed below, Gaetano has no legal right to retain the annuity proceeds, other than whatever rights he may pursue in the pending divorce proceedings. Even if the Court accepts Gaetano's version of the facts as true, as it must on a motion for summary judgment against him, and assumes that he was acting with actual authority from Rosa Dina to direct U.S. Life to deliver the Annuity proceeds to the Citibank account, he is still obligated in equity to return the money to U.S. Life. Gaetano's own testimony regarding the alleged conversation with Rosa Dina indicates that any grant of agency authority was limited by his promise to deliver the money to her: "I told her that they cannot read your . . . address, where do you want me to send these monies? Do you want me to put it together in a savings account and then I will give it to you?. . . . And she told me yes, it is okay." (Gaetano Tr. 42:3-9.) If Gaetano had done what he himself says he agreed to do, and what he was authorized to accept the distribution for the sole purpose of doing, this action would never have been necessary. His retention of the Annuity proceeds is outside any legitimate exercise of agency authority, and thus the purported agency gives rise to no equitable claim to those funds. Other than his claims to ownership, rejected below, Gaetano offers no other basis on which he might be entitled to the Annuity proceeds. There are no material factual disputes, and summary judgment is appropriate on U.S. Life's cross-claim for unjust enrichment.

  U.S. Life has also moved for summary judgment on its conversion claim against Gaetano. "Conversion occurs when a defendant exercises unauthorized dominion over personal property in interference with a plaintiff's legal title or superior right of possession." Lopresti v. Terwilliger, 126 F.3d 34, 41-42 (2d Cir. 1997) (citations omitted). Where the property allegedly converted is money, the conversion action will lie "where there is an obligation to return or otherwise treat in a particular manner the specific money in question." Id. It is undisputed that, through his representations of agency, Gaetano induced U.S. Life to distribute the Annuity proceeds to an account held jointly by him and Rosa Dina, and that he promptly withdrew those proceeds and placed them in an account held in his name only. After U.S. Life learned of its error, it repeatedly asked Gaetano to return the proceeds and he refused. (Knepper Aff. ¶ 10.)

  To the extent any conversion occurred, it appears that the proper plaintiff is Rosa Dina and not U.S. Life, since once Citibank deposited the check from U.S. Life into the joint account, U.S. Life ceased to have legal title to the funds. In addition, conversion actions involving money, as opposed to personal property, typically require some factual showing of identifiability and segregation of funds, see Lopresti, 126 F.3d at 42, which would be difficult to satisfy on the present record. The Court need not resolve these issues, however, as U.S. Life does not appear to seek any additional damages on its conversion claim beyond the return of the Annuity proceeds sought in its unjust enrichment claim. (Cilio Aff., Ex. G.) The conversion claim is thus mooted by the award of summary judgment on the unjust enrichment claim, and will be dismissed without prejudice.

  IV. Gaetano's Counter-Claims against Rosa Dina

  Finally, Gaetano has counter-claimed against Rosa Dina for the recoupment of approximately $99,000 that he alleges Rosa Dina wrongfully withdrew from joint accounts between 1986 and 1990. (Cilio Aff., Ex. F.) Rosa Dina has moved for summary judgment on the grounds that the counterclaims are time-barred. Both parties agree that, due to the elapse of over twelve years, Gaetano would be barred by any applicable statute of limitations from pursuing any affirmative claim against Rosa Dina for the return of the $99,000. However, Gaetano argues that his claims are viable as counterclaims under N.Y.C.P.L.R. § 203(d), which provides that "if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed."*fn4

  New York courts have generally required a tight nexus between claim and counterclaim before section 203(d) will save a counterclaim from an otherwise-applicable statute of limitation. See, e.g., Bloomfield v. Bloomfield, 738 N.Y.S.2d 650 (2001) (wife's counterclaim attacking validity of pre-nuptial agreement not barred against claim by husband that agreement precluded equitable distribution); Messinger v. Mount Sinai Medical Center, 720 N.Y.S.2d 13 (4th Dep't 2001) (counterclaims for assault by decedent's family upon hearing of his death cannot be asserted by physician-defendants in response to a claim for malpractice in death; the assault "was not a part of the malpractice but arguably only a result of it."). Gaetano asserts that his counterclaims for money removed from joint accounts between 1986 and 1990 arise from the transactions upon which claims asserted in the complaint depend, because Rosa Dina's claim against U.S. Life for breach of contract depends upon her 1992 payment of the premium, and that premium was paid out of money allegedly removed from the joint accounts. This contention is meritless. Even accepting Gaetano's version of the facts as true for purposes of summary judgment, the transactions that give rise to Gaetano's counterclaims are the allegedly improper withdrawals by Rosa Dina between 1986 and 1990. Gaetano's claim for return of the money does not arise from anything Rosa Dina may have done with those funds several years later. He is no more entitled to assert these counterclaims in the present action than he would be if Rosa Dina had used the disputed money to buy a car in 1992, and then sued Gaetano for injuries suffered in an accident caused by Gaetano's negligent driving of that car in 2000.

  Gaetano's counterclaims do not satisfy section 203(d)'s requirement that they arise out of the same transaction or occurrence on which the claims in Rosa Dina's complaint are based — whether that "transaction or occurrence" is defined as the March 2000 Annuity Service Request and subsequent events, or the original purchase of the Annuity in 1992. If section 203(d) does not apply, there is no dispute that the counterclaims are time-barred and Rosa Dina is entitled to summary judgment dismissing them.*fn5


  For the reasons discussed above, (i) Rosa Dina's motion for summary judgment against U.S. Life for breach of contract is granted, (ii) U.S. Life's motion for summary judgment on its cross-claim against Gaetano for unjust enrichment is granted and its cross-claim for conversion is dismissed as moot, and (iii) Rosa Dina's motion for summary judgment on Gaetano's counterclaims is granted and those claims are dismissed as time-barred. Rosa Dina and U.S. Life are directed to submit proposed orders of judgment within ten days of the date this Order is entered on the docket.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.