The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
In this case, the Court must decide whether a spousal consent waiver, signed by the surviving spouse, but notarized in her absence, is a valid waiver.
This action arises under the Employment Retirement Income Security Act of 1974 ("ERISA") 29 U.S.C. §§ 1101 et seq. The plaintiff Janice Alfieri (the "plaintiff" or "Janice"), as surviving spouse and widow of Frank Alfieri ("Frank" or the "decedent") contends that she never signed and in fact, never saw a document in which she allegedly waived her rights to receive monthly pension benefits as a survivor of Frank.
The complaint consists of two causes of action. In the first cause of action the plaintiff "seeks payment of her rightful share of the Pension as if no election had been made." In the second cause of action, the plaintiff seeks a "written accounting of the proper maximum monthly amounts due her under the said Plan." The defendants in this care are the Guild Times Pension Plan, the Guild Times Benefit Fund and Robert Costello, the Administrator of the Fund.
Factually, this case concerns two issues, namely, (1) did the plaintiff Janice Alfieri sign the "waiver" form and (2) was her signature properly notarized. Depending on the resolution of the two factual issues, the Court must determine the legal consequences.
This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P.52(a). See Muller v. First Unum Life Insurance Co., 341 F3d 119, 124-125 (2d Cir. 2003); Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir. 1991).
Janice Alfieri testified that her husband Frank was born on May 4, 1938 and died on August 23, 2001, at 62 years of age. They were married in 1962 and have lived in Port Jefferson Station for many years. Janice is seven months older than Frank. From age seventeen, Frank worked for the New York Times at its office at 223 West 43rd Street in Manhattan. Frank retired on June 30, 2001 and died less than two months later.
While he worked for the New York Times, Frank arose very early and routinely took the 5:40 a.m. Long Island Railroad train from Port Jefferson Station to Manhattan. Janice testified that she never learned to drive. She stated that the last time she was at the New York Times Building was in 1995; and never after that.
Frank worked for the New York Times from 1955 to June 30, 2001 and had certain pension benefits. He did not contribute toward these pension benefits. There came a time in 2001 after 46 years, when Frank decided to retire. He was tired of traveling back and forth from Port Jefferson by railroad. He was then 62 years of age. He would have been 63 on December 24, 2001. Frank did retire on June 30, 2001 and, sadly, died of lung cancer on August 23, 2001. Janice was his beneficiary under the pension plan.
Apparently, Frank consulted the Plan office a number of times over the two or three years prior to his retirement and obtained various estimates of his pension benefits (see, for example, Dfts. Exs. J and K). It also appears that Frank resolved to retire effective July 1, 2001, but it was not until on or about June 25, 2001 that he made his formal election for the pension benefits. A phone message left for the pension officer on June 25, 2001, indicates that Frank elected the "normal" form of benefits, including the one-half cash lump sum (see Plf. Ex. 49). He returned a number of forms to the pension office including the spousal consent form (Plf. Ex. 9; Dfts. Ex. C); a Designation of Beneficiary form (Dfts. Ex. D); application for Early Retirement Benefits (Dfts. Ex. E); a Surviving Spouse option (Dfts. Ex. F); a Cash Lump Sum option (Dfts. Ex. G); a Direct Rollover form (Dfts. Ex. H) and a withholding certificate (Dfts. Ex. I). Here, there is no question, and the Court finds that Frank made a knowing election to receive the Cash Lump Sum payment coupled with the annuity payment that did not provide a survivor benefit for his wife.
Also, it can be inferred that Frank obtained the pension retirement documents from the pension office on June 25, 2001, the day he telephoned instructions for his pension elections. In addition, the Court notes that the key documents are all dated on June 26, 2001, the date that Janice is alleged to have signed the spousal consent document. In fact, Janice admitted that she signed the "Designated Beneficiary" form (Dfts. Ex. D) on June 26, 2001, and that she knew that the document related to Frank's pension.
Frank died without a will and Janice was appointed as Administratrix of his estate. After Frank retired, and prior to his death, he received three checks from the Newspaper Guild of New York. One check was in the sum of $200,783.17 dated August 15, 2001 and payable to NAMBNA American Bank FBO Frank Alfieri (Plf. Ex. 23B). The second check was also dated August 15, 2001, payable to Frank Alfieri in the sum of $2,360.74 (Plf. Ex. 23C) which covered two monthly payments. The third check was in the sum of $2,475.84 to the order of Frank Alfieri and was also similarly dated (Plf. Ex. 23D). Frank received and accepted all three checks. A fourth check in the sum of $1,237.92 to the order of Frank Alfieri dated September 1, 2001 (Plf. Ex. 24) was received after his death and was returned. No one explained to Janice what the checks were for.
Prior to Frank's retirement no representative of the defendants explained to Janice about any retirement rights for either Frank or her. Prior to sending the last check back, she spoke to a woman at the New York Times, who told her, for the first time, that she had no right to a pension, and to return the last check. At that point Janice retained an attorney. Janice maintains that prior to her husband's death she received no retirement documents of any kind.
After Frank died, Janice found documents which were in his possession and which she never saw before his death. In particular, Janice testified that she never saw and never signed, the crucial document in this case. This document is on the letterhead of the "Newspaper Guild of New York. New York Times" and is entitled "Information to Spouse of Participant on Estimate of Participant's Projected GTP Pension Benefits" (Plf. Ex. 9; Dfts. Ex. C). A photostatic copy of this document is annexed to this decision and marked Appendix A.
This document initially states that "The participant . . . has requested an estimate of GTP retirement benefits. You should know how survivor benefits apply in your case. The figures below are intended to give you, as Surviving Spouse, information about the benefits, if any, you may receive after the Participant's death."
In capital letters, the following words indicate the form of pension benefits Frank elected:
THE FORM OF PENSION BENEFIT THE PARTICIPANT ELECTS DETERMINES WHAT MAY BE PAYABLE TO YOU FOR LIFE
Following this language, the document sets forth the form of pension payable to the participant and "Payable to you as Surviving Spouse after Participant's Death." Payable to Frank, as the Participant, is a Cash Lump Sum option of $200,983 and pension payments of $1411 per month. In the column indicating Payable to Janice as the Surviving Spouse is a - 0 - both for monthly pension payments and for the Cash Lump Sum option.
Also, there is a column marked "Needs Your Consent" and the words "Yes" indicate that Janice's consent is needed to formalize her consent to Frank's election. This requirement is expressly noted in the following language:
Based on the Participant's election of retirement benefits, you are required to give written, irrevocable and notarized consent to that election by the Participant. See below. (Emphasis supplied).
The bottom portion of this document, (Plf. Ex. 9; Dfts. Ex. C) reads as follows: SPOUSAL CONSENT -- MUST BE NOTARIZED AND RETURNED TO GTP
In Connection with the retirement of my spouse, Frank Alfieri (SS# redacted), who will effect a normal retirement on July 2, 2001, I understand he has elected the normal form together with the Cash Lump Sum Option.
I also understand this election eliminates a pension that may otherwise be payable to me as his Surviving Spouse. I acknowledge the effect of his election under the Plan and give my irrevocable consent.
Under the "Spousal Consent" portion of the document, near the bottom, on the right side, is a signature purporting to be that of Janice Alfieri and a handwritten date of 6/26/01. Under the signature is typed the name "Janice Alfiere". The typed name of Alfieri is misspelled. The very bottom portion of the document contains the address of the New York Times; the telephone numbers of the Benefit Fund and the Pension Plan; a fax number; and the word "WAIVER" in capital letters. On the right lower side of the document is a space for a notary which is signed and stamped by Howard T. Walsh, a Notary Public. The notary portion contains only the signature of the notary and a stamp stating that Howard Walsh is a Notary Public of the State of New York, qualified in Westchester County, with a commission that expires on September 30, 2002. Significantly, missing from the document are the usual notarial words, "On this _____ day of ________ 20___, before me personally came _______________ to me known to be the individual described above and who executed the same as his/her free and voluntary act of the uses and purposes stated herein."
Janice testified that she never saw the "spousal consent" document until after Frank died, when she found it in his papers. She testified unequivocally that she never met Howard Walsh, the notary public on the document; that on Tuesday June 26, 2001, the date at issue, she went out to lunch and went shopping at Lake Grove in Suffolk County; at 3:30 p.m. she went to work at the Port Jefferson Bowling Center; and she did not go into Manhattan that day. Further, Janice stated that this signature on the document was not her handwriting and she never signed this paper. She stated that, possibly, it was Frank's handwriting. However, Janice conceded that "It looks like my signature" (Tr. at 237).*fn1 Janice admitted that on June 26, 2001 she signed another pension form with regard to her being the designated beneficiary (Dfts. Ex. D). However, she stated that she signed this form at home.
As to the check for $200,983.17, Janice testified that it was received by Frank before he died and it was rolled over into an MBNA Bank IRA account in the names of Janice and Frank, and she still has that money.
Nicole Hanlon, the plaintiff's daughter, testified that Janice did not go to Manhattan during the last week of June 2001. When asked how she knew that fact, Nicole responded that "Because she would have told me that she went." (Tr. at 193). However, she conceded that sometimes her mother did things without telling her. Gregory Alfieri, the plaintiff's son, lived at home with his mother "on occasion." He knows that Janice did not go to Manhattan on June 26, 2001 because he spoke to her on the phone just before she went to lunch with her friend Mrs. Briente. Gregory stated that he has an independent recollection of speaking to his mother on June 26, 2001 because it was his daughter's birthday. He also stated that he spoke to his mother every day -seven days a week for 365 days a year. Also, Gregory testified that he saw his mother in the bowling alley where she worked on June 26, 2001, that very day. Dolores Gulino, a friend of the plaintiff since their high school days, told Janice early in June 2001, "make sure you do not sign away your rights."
On June 26, 2001, the date the so-called "spousal consent" was allegedly signed by Janice, Frank Alfieri signed a document which included an "Option Election" (Dfts. Ex. F). This document contains an acknowledgment by Frank that he received an explanation concerning the "Automatic Surviving Spouse Option"; an explanation of the form of pension benefits available to him; and the surviving spouse option. The document goes on to relate that Frank filed an up-to-date Certification of Marital Status form with the Trustees and that he elected one of the coverages provided. The coverage that Frank Alfieri selected on June 26, 2001 was the "Rejection of Coverage under the Surviving Spouse Option on any basis" and the election of the "Cash Lump Sum Option." The following is the option selected by Frank by checkmarks on the paper:
I have filed an up-to-date Certificate of Marital Status form with the Trustees and I am eligible for pension benefit payment and/or option coverage under the Plan. I understand this option election may not be elected, cancelled or modified after the Benefit Commencement date and hereby elect one of the following: G Coverage under the Surviving Spouse Option on a ____% basis (50% or 75% or 100%).
G Coverage under the Surviving Spouse Option on a _____% basis (50% or 75% or 100%) together with coverage under the Cash Lump Sum Option. Attached is my completed form on which I elect such option.
: Rejection of coverage under the Surviving Spouse Option on any basis, whether or not I am married. Notwithstanding this rejection of the Surviving Spouse Option on any basis, I have other option rights under the Plan. Accordingly, I hereby elect one of the following:
: Coverage under another applicable option as indicated below. Attached is my completed form on which I elect such option.
G I do not wish to elect an option.
It is therefore clear that, on June 26, 2001 -- the same date that Janice is alleged to have signed the "spousal consent" at issue -- Frank expressly rejected coverage for her under the surviving spouse option, and, instead, elected to receive a $200,000 lump sum payment and increased monthly monetary benefits. This action on Frank's part was compatible with the object of the signed "spousal consent" form at issue.
Howard Walsh was the notary public who notarized the signature on the disputed "spousal consent" document. He has been an employee of the New York Times for almost 40 years. Walsh knew the decedent and worked with him for a number of years. Frank and Walsh worked on the same floor and in the same Customer Fulfillment Department for about six years. They did not socialize and all their contacts were on the sixth floor at 229 West 43rd Street.
In the year 2001, Walsh was a notary public and had been one for at least twenty years. The Times asked him to be a notary because he handled delinquent accounts and needed to notarize documents in connection with that assignment. He then took the required test and became a notary public. Walsh resided in Yonkers, New York and qualified as a notary in Westchester County.
When Walsh notarizes documents for a person he has never met before, his usual procedure is to swear in the person and then have him or her sign before him. He does not ask for identification and generally reads the oath to the person whose signature he notarizes.
With regard to this particular notarization, Walsh was shown the "spousal consent" document at issue (Plf. Ex. 9; Dfts. Ex. C). He testified that he doesn't remember previously seeing it. Walsh readily acknowledged that the document contained his signature and his notarial stamp, but he doesn't remember signing it. However, he stated that notwithstanding his qualification as a notary in Westchester County, he notarized documents only on the sixth floor of the New York ...