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In re Estate of Landor

Supreme Court of New York, Second Department

October 9, 2013

In the Matter of the Estate of James A. Landor, Sarah Landor, administratrix, petitioner-respondent,
v.
Jean Guo, respondent-appellant, International Business Machines Corp., respondent-respondent; IBM 401(k) Plus Plan, et al., intervenors-respondents-respondents. File No. 98870/10

Reisman Rubeo & McClure, LLP, Hawthorne, N.Y. (Mark I. Reisman of counsel), for respondent-appellant.

McCabe & Mack LLP, Poughkeepsie, N.Y. (Karen Folster Lesperance of cousnel), for petitioner-respondent.

Golenbock Eiseman Assor Bell & Peskoe LLP, New York, N.Y. (Jeffrey T. Golenbock and Matthew C. Daly of counsel), for respondent-respondent and intervenors-respondents-respondents.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In a proceeding, inter alia, pursuant to SCPA 2103 for the turnover of certain property allegedly withheld from the estate of James A. Landor, Jean Guo appeals (1) from an order of the Surrogate's Court, Dutchess County (Pagones, S.), dated March 4, 2011, which denied her motion, inter alia, to dismiss that branch of the petition which sought the turnover of the funds in the decedent's "IBM 401K" plan, made on the ground that the parties failed to exhaust administrative remedies, (2), as limited by her brief, from so much of a decree of the same court dated March 10, 2011, as, upon the order dated March 4, 2011, and upon the denial of her application to stay the proceedings while she pursued certain administrative remedies, confirmed so much of a referee's report dated March 8, 2011, made after a hearing, as related to the "IBM 401K" plan funds, granted that branch of the turnover petition which related to the "IBM 401K" plan funds, and directed the respondent International Business Machines Corp. to turn over the funds in the decedent's "IBM 401K" plan to Sarah Landor, as administrator of the decedent's estate, (3) from an order of the same court dated August 22, 2011, which granted the motion of the respondent International Business Machines Corp. and the nonparties IBM 401(k) Plus Plan and Frederico Castellanos, as plan administrator, for leave to intervene by those nonparties in the proceeding, and (4), as limited by her brief, from so much of an amended decree of the same court dated August 22, 2011, as, upon the order dated August 22, 2011, confirmed so much of the Referee's report dated March 8, 2011, made after a hearing, as related to the "IBM 401K" plan, and directed the IBM 401(k) Plus Plan and Frederico Castellanos, as plan administrator, to turn over the funds in the decedent's "IBM 401K" plan to Sarah Landor, individually, as sole child of the decedent.

ORDERED that the appeals from the orders dated March 4, 2011, and August 22, 2011, are dismissed; and it is further,

ORDERED that the appeal from the decree dated March 10, 2011, is dismissed, as the decree was superseded by the amended decree; and it is further,

ORDERED that the amended decree dated August 22, 2011, is reversed insofar as appealed from, on the law, the order dated August 22, 2011, is vacated, the motion for leave to intervene is denied, and so much of the decree as confirmed that portion of the report of a referee dated March 8, 2011, made after a hearing, which related to the "IBM 401K" plan, granted that branch of the petition relating to the "IBM 401K" plan, and directed the respondent International Business Machines Corp. to turn over the funds in the decedent's "IBM 401K" plan to Sarah Landor, as administrator of the decedent's estate, is vacated, and that branch of the petition which sought the turnover of the funds in the decedent's "IBM 401K" plan and the appellant's "cross petition" relating thereto are dismissed without prejudice, for failure to join a necessary party; and it is further,

ORDERED that one bill of costs is awarded to the appellant, payable by Sarah Landor personally, and the respondent-respondent and the intervenors-respondents, appearing separately and filing separate briefs.

The appeals from the orders dated March 4, 2011, and August 22, 2011, must be dismissed because the right of direct appeal therefrom terminated with the entry of a decree in the proceeding (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order dated March 4, 2011, have been rendered academic, on the ground that Jean Guo has now exhausted her administrative remedies. The issues raised on the appeal from the order dated August 22, 2011, are brought up for review and have been considered on the appeal from the amended decree (see CPLR 5501[a][1]).

Sarah Landor is the only child of the decedent James Landor (hereinafter the decedent) and is the administrator of his estate. Sarah Landor was notified by the decedent's employer, International Business Machines Corp. (hereinafter IBM), by letter dated March 17, 2010, that the decedent had not designated a beneficiary for his "IBM 401(K)" (hereinafter 401K) Plus Plan (hereinafter the Plan). However, after the decedent's long-time companion and purported beneficiary, Jean Guo, provided IBM with a carbon copy of a beneficiary designation form dated January 15, 1998, designating Guo as beneficiary, IBM, by letters dated April 20, 2010, notified Sarah Landor and Guo that a beneficiary designation form was found, and that Guo was entitled to the 401K Plan funds.

In May 2010, in her capacity as administrator of the decedent's estate, Sarah Landor commenced the instant proceeding against IBM and Guo to establish the estate's entitlement to the decedent's 401K Plan funds. Sarah Landor failed to join the Plan or its administrator as parties. In the petition, she claimed that the beneficiary designation form was invalid because the original was not on file with the Plan. She further claimed that the estate was entitled to the 401K Plan funds because the rules of the Plan provided that if a decedent had not designated a beneficiary, the benefit would be paid to either the decedent's spouse, child, parents, or estate, in that order of preference.

On or about July 29, 2010, Guo "cross-petitioned, " inter alia, for a determination that she was entitled to the decedent's 401K Plan funds, pursuant to the decedent's beneficiary designation. Thereafter, by letter dated July 30, 2010, IBM informed Guo that the form designating her as beneficiary was previously rejected in 1998, because the decedent failed to answer the question on the form asking him to identify his relationship with Guo, and that information was required to "properly identify the beneficiary." That letter did not advise Guo of her right to an administrative appeal.

Meanwhile, on August 6, 2010, the parties consented to refer the issue of whether the decedent's 401K Plan funds were an asset of the estate to a referee to hear and report. On October 12, 2010, at a hearing before the Referee, the Plan manager testified that the beneficiary designation form was rejected as incomplete because the decedent failed to answer the question on the form asking him to identify his relationship with Guo. She acknowledged that the letter dated July 30, 2010, notifying Guo that she was not entitled to the 401K Plan funds, did not advise her of a right to appeal. She acknowledged that since the decedent was ...


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