United States District Court, E.D. New York
January 21, 2015
WILTON REASSURANCE LIFE INSURANCE COMPANY OF NEW YORK, Plaintiff,
MICHAEL SMITH, ANTHONY COLUMBIS SMITH, VANESSA SMITH also known as Benhester Craig, JANE DOE, and SAKINA SMITH, Defendants
For Wilton Reassurance Life Insurance Company of New York, Plaintiff: Jaime M. Merritt, LEAD ATTORNEY, White and Williams LLP, New York, NY.
Michael Smith, Defendant, Pro se, Brooklyn, NY.
Anthony Columbis Smith, Defendant, Pro se, Brooklyn, NY.
Vanessa Smith, also known as Benhester Craig, Defendant, Pro se, East Point, GA.
Sakina Smith, Defendant, Pro se, Brooklyn, NY.
REPORT AND RECOMMENDATION
VERA M. SCANLON, United States Magistrate Judge.
Wilton Reassurance Life Insurance Company of New York (" Wilton") brought this interpleader action pursuant to 28 U.S.C. § 1335 to resolve conflicting claims as to a life insurance policy (the " Policy"), the proceeds of which are claimed by the Defendants-in-interpleader: Michael Smith (" Michael"); Anthony Columbus Smith (" Anthony");  Vanessa Smith, also known as Benhester Craig (" Benhester"); and Sakina Smith (" Sakina") (collectively, " Defendants"). Defendants appear pro se.
From the commencement of this action, Wilton has acknowledged its obligation to render payment under the Policy. See Compl. ¶ 26, ECF No. 1. Wilton sought the Court's intervention because it was " unable to determine to whom the death benefits due under the Policy are payable, or which of the Defendants is entitled thereto." Id. ¶ 27. The Parties filed a stipulation for Wilton to deposit the disputed funds, minus $4, 460.35 for Wilton's attorneys' fees and costs in bringing this action, with the Clerk of Court. Stip., ECF No. 20-1. Thereafter, the Honorable Sandra L. Townes entered an Order providing that, inter alia, once Wilton deposited the funds, Wilton would be dismissed from this action and discharged of all liability to Defendants relating to the death benefits under the Policy. Order, ECF No. 25; see Stip. Order, ECF No. 26. Wilton deposited the funds, which totaled $22, 072.55. Letter, ECF No. 27.
Presently before the Court on referral from the Honorable Sandra L. Townes, see Order, ECF No. 34, is the summary judgment motion of Defendant Michael Smith. For the reasons stated herein, this Court respectfully recommends that his motion for summary judgment be granted in part and denied in part. Specifically, this Court recommends dismissing Sakina's claims, but denying Michael's motion as it pertains to Michael's, Anthony's and Benhester's claims. This Court further recommends that an order be issued designating this case for court-annexed mediation pursuant to Local Civil Rule 83.8(b)(1).
The following facts are drawn from the Amended Complaint, unless otherwise stated, and are provided for background purposes only.
A. The Parties
Wilton is an insurance company organized and existing under the laws of the State of New York, with a principal place of business in Wilton, Connecticut. Am. Compl. ¶ 1, ECF No. 14. The Policy at issue in this action insured the life of Columbus Smith (" Columbus") for $25, 000.00. Am. Compl. ¶ 9.
It is undisputed that Defendants Michael and Anthony are the sons of Columbus Smith, and that they are residents of Brooklyn, New York. Am. Compl. ¶ ¶ 2-3; Anthony Answer ¶ ¶ 2-3, ECF No. 19; Benhester Answer ¶ ¶ 2-3, ECF No. 42-1 at 3. It is also undisputed that Defendant Sakina, as the wife of Michael, is Columbus's daughter-in-law; she is also a resident of Brooklyn, New York. Am. Compl. ¶ 5; Anthony Answer ¶ 5; Benhester Answer ¶ 5; Michael Answer at 1; Sakina Answer at 1.
The Parties dispute Benhester's biological relationship to Columbus. Benhester contends that she is Columbus's daughter, while Michael and Anthony contend that they share a mother, but not a father, with Benhester. See Am. Compl. ¶ 4 (Benhester is the " surviving daughter of the Insured"); Anthony Answer ¶ 4 (" No."); Benhester Answer ¶ 4 (" I agree . . . ."); Michael Answer at 1 (" Benhester Craig is my sister claiming she's aka Vanessa Smith but [she is] not a biological child of my father."); Sakina Answer at 2 (Columbus " established [Benhester] was not a Smith with friends and family."); see also Tr., May 28, 2013 (" Tr. III") 16:14-23, ECF No. 41 (Anthony stated to the Court that Benhester was his sister " on our mother's side"). At all times relevant to this litigation, Benhester was a resident of the state of Georgia. Am. Compl. ¶ 4; Letter, ECF No. 37.
A. The Life Insurance Policy
On April 1, 1992, North American Company for Life and Health Insurance of New York (" NANY"), to which Wilton is the successor, issued life insurance policy No. LN00414370 to " Columbis Smith." Am. Compl. ¶ ¶ 1, 8, Exs. 1-2. On the Policy application, Columbus identified the beneficiaries of the Policy as " 4/5 Vanessa Smith [age] 38 [relationship] daughter" and " 1/5 Michael Smith [age] 36 [relationship] son." Id. ¶ 9, Ex. 2. Columbus and Michael J. Troisi (" Mr. Troisi"), the Licensed Agent and witness, signed the Policy application. Id. at Ex. 2. According to Benhester, and undisputed by any Party, Mr. Troisi is deceased. See, Letter at 6, ECF No. 29.
The Policy provided that the death benefit was payable to the beneficiary or beneficiaries at the time of the insured's death. Id. ¶ 10. The Policy included the following provision concerning changing beneficiaries:
A new Beneficiary may be designated from time to time. A request for change of Beneficiary must be: (a) in writing on a form satisfactory to us [the insurer]; and (b) filed at the Home Office. The request must be signed by you [the insured]. . . . A change of Beneficiary does not take effect until recorded by us. When a change of Beneficiary is so recorded, whether or not the insured is then alive, it takes effect as of the date the request is signed.
Am. Compl. Ex. 1 at 5.
B. Columbus Smith's Attempts To Change The Beneficiaries
Beginning in 2007, Columbus filed several forms to, inter alia, change the beneficiaries of the Policy; these forms were rejected by Wilton.
1. The First Form
The first form, dated January 24, 2007, and filed with NANY, listed the insured as " Columbus Smith, " and requested changes under the portions of the form titled " Change Address, " " Beneficiary Change, " " Name Change" and " Owner Change." Am. Compl. Ex. 3. First, under " Change Address, " the insurer requested that mail be sent " to owner, in care of: Anthony Columbus Smith, son." Id. Second, the insured requested that the primary beneficiary be changed to " Columbus Smith, " described as " Father, " and that the contingent beneficiary be changed to " Anthony Columbus Smith, " described as " Son." Id. Third, concerning " Name Change, " the insured failed to check any of the boxes for requesting a name change for the insured, owner, beneficiary or premium payer. Id. Nevertheless, the insured completed the lines under these boxes: next to " From, " he wrote, " Benhester Craig, Michael Smith"; next to " To, " he wrote, " Anthony C. Smith"; and next to " State reason for change, " he wrote, " Mr. Columbus ask to change [sic]." Id. Fourth, in the section titled " Owner Change, " he wrote, " Son, Anthony Columbus Smith - only!" and listed two phone numbers. Id. (emphasis in original). At the bottom of the form, under " Present Owner Signature, " the name " Columbus Smith" is signed; the name of " Mr. Anthony Columbus Smith" is signed thrice, once under " New Owner Signature" and twice under the two spots for " Trustee Name"; and under " Witness" is written " None." Id. 
By letter dated February 7, 2007, Wilton informed Columbus that " [w]e are unable to accept the insured as the beneficiary" and directed him to " complete the new form enclosed." Am. Compl. Ex. 4.
2. The Second Form
The second form, dated December 18, 2007, and filed with Wilton, listed the insured as " Columbis Smith, " and--notwithstanding the instructions that the insured could not be the beneficiary--provided the same information as in the first form under the " Change Address" and " Beneficiary Change" sections. Id. In addition, under the " Name Change" section, the box for " Beneficiary" was checked; next to " From" was written, " Michael, Benhester, Change"; next to " To" was written, " Anthony Columbus Smith - 'only'"; and next to " State reason for change" was written, " Columbus Smith wanted to change the policy." Id. Under the section for " Owner Change" was written, " I am the son of Columbus Smith. He change[d] the beneficiary to son Anthony Columbus Smith only. 12-18-07 - Respectfully, Mr. Anthony C. Smith." Id. At the bottom of the form, the name " Columbus Smith" is signed as the " Present Owner, " and the name " Anthony Columbus Smith" or " Anthony Smith" is signed as the " Witness, " " Owner's Spouse, " and on the two " Trustee" lines, but not on the " New Owner" line. Id.
By letter dated January 14, 2008, Wilton again informed Columbus that " the insured cannot be named as beneficiary"; requested additional information and documentation " to complete your ownership change request" and to change the name of " Columbis Smith" on the Policy; and provided a new form for Columbus to complete. Am. Compl. Ex. 6.
3. The Third Form
The third form, which was undated and filed with Wilton, listed the insured as " Columbus Smith." Am. Compl. Ex. 7. Specifically, the typed name of " Columbis" was crossed out by hand, and the name " Columbus" was written in by hand. Id. Under " Change Mailing Address, " the form listed Columbus's name and address, not Anthony's name. Id. Under " Beneficiary Change, " the primary beneficiary was listed as " Anthony Columbus Smith, " and no other beneficiary was named. Id. The sections for " Name Change" and " Owner Change" were left blank. Id. In the signature section, only the name " Columbus Smith" was signed; the signature section was left undated; and there was no witness signature. Id.
By letter dated February 4, 2008, Wilton informed Columbus that it had received the form and related documentation, but " [t]he Identification Card we received for [the] name change of the insured has [an] expiry date of September 26, 2007, which is not acceptable, [and to] please provide us any valid legal document in order to process the requested name change. Also, the signature date of the policy owner(s) is required . . . to comply with your requests." Am. Compl. Ex. 8. Wilton again provided a form for Columbus to complete, instructing him to " complete all highlighted areas on the enclosed form" and return the " signed and dated form" to Wilton. Id.
4. The Fourth Form
The fourth form, dated February 13, 2008, and filed with Wilton, lists the insured as " Columbis Smith." Am. Compl. Ex. 9. No change was made to this typed name. Id. The " Change Mailing Address, " " Name Change" and " Owner Change" sections were left blank. Id. Under " Beneficiary Change, " the primary beneficiary was named as " Anthony Columbus Smith."  The name " Columbus Smith" is signed above the line for " Present Owner Signature"; the signature was dated; and the line for a witness's signature was left blank. Id.
By letter dated April 8, 2008, Wilton informed Columbus that it had received his " request for name correction of the insured and to change the beneficiary designation of [his] policy along with a copy of [the] legal document for [a] name correction of the insured. . . . [Wilton is] in need of the following information to be completed in order to process your request. [Wilton] received a copy of [a] legal document for [a] name change of the insured on the above[-]referenced policy [but it was] not legible to [Wilton]. Please provide the valid and legible legal document for name change of the insured." Am. Compl. Ex. 10. Wilton again requested that Columbus " complete all highlight areas on the enclosed form" and return the form to Wilton. The record does not contain evidence that Columbus completed or returned this fifth form.
C. The Dispute Over The Death Benefits And The Present Motion
Columbus passed away on September 24, 2011. Am. Compl. Ex. 11 (death certificate). The funeral home reported the death to Wilton on September 26, 2011. Am. Compl. ¶ 20. On September 28, 2011, Wilton sent claim forms addressed to Vanessa Smith to the funeral home. Id. ¶ 21. None of the Parties have identified an individual with the legal name of Vanessa Smith, see Am. Compl. ¶ ¶ 25, 27; Anthony Answer ¶ ¶ 25, 27, although Benhester alleges that Columbus " pronounce[d] [her] name like Vanessa instead of Benhester." Benhester Answer ¶ 27.
On September 30, 2011, Anthony wrote to Wilton to contest the beneficiary designation, stating that he was the proper and sole beneficiary. Id. ¶ 22, Ex. 12. On October 6, 2011, Benhester filed a claim for benefits, alleging that Columbus had difficulty pronouncing her name, and that Mr. Troisi incorrectly recorded her name as Vanessa Smith. Id. ¶ 23, Ex. 13. On October 18, 2011, Michael filed a claim for benefits. Id. ¶ 23, Ex. 14. Michael and Sakina alleged to Wilton that " Vanessa Smith" refers to Sakina Smith. Id. ¶ 25; see Michael Answer at 1 (" [M]y father intended this policy to be for my wife and myself."); Sakina Answer at 1 (" I too believe the policy was intended for me and my husband Michael."). Thus, Wilton was not able to determine to whom the death benefits were payable, and it brought this interpleader action. Am. Compl. ¶ 30.
During an Initial Conference and several subsequent telephone conferences, this Court had extensive discussions with the pro se Defendants about the availability of discovery, including the possibility of depositions. As stated in this Court's September 9, 2013 Order, " [o]n the record, the parties agreed that they had received all of the documentation needed related to the subject insurance policy, " except for certain foster care records sought by Benhester; this Court extended the discovery schedule and later temporarily stayed the summary judgment briefing schedule to allow Benhester ample time in which to obtain these records and/or serve a subpoena duces tecum. Order, Sept. 9, 2013; Order, Feb. 3, 2014. After Benhester failed to file a Court-ordered status report as to her attempts to obtain these documents and did not request any additional time for discovery, the stay on the motion schedule was lifted. Order, Mar. 17, 2014; Order, Mar. 26, 2014.
Michael filed the present motion for summary judgment, requesting that he receive the full amount of the Policy benefits. Michael Smith Mot. for Summ. J. (" Michael Mem.") 1, ECF No. 22. Michael's motion was notarized. Michael Mem. 4. No other Party filed a motion for summary judgment. Sakina filed a letter stating that she was " unopposed" to Michael's motion for summary judgment. Letter (" Sakina Mem."), ECF No. 32. This letter was signed but not notarized. Id. Anthony filed two letters in opposition to the summary judgment motion; these letters were signed but not notarized. Letter (" Anthony Mem. I") at 2, ECF No. 24; Letter (" Anthony Mem. II") at 1, ECF No. 31. Benhester also filed a signed, but not notarized, letter in opposition to the motion. Letter (" Benhester Mem."), ECF No. 29; see Letter (" Benhester Mem. II"), ECF No. 42-3 (additional exhibits to ECF No. 29).
The Court will now consider the Parties' submissions.
The Court has jurisdiction to adjudicate this interpleader action. 28 U.S.C. § 1335 grants federal jurisdiction over interpleader actions concerning, inter alia, insurance policies valued at over $500.00 and involving " [t]wo or more adverse claimants, of diverse citizenship." 28 U.S.C. § 1335(a)(1). This statute " has been uniformly construed to require only 'minimal diversity, ' that is, diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens." State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967); see Metro. Life Ins. Co. v. Mitchell, 966 F.Supp.2d 97, 102 (E.D.N.Y. 2013). Here, minimal diversity is met as Benhester is a citizen of Georgia and Michael, Sakina and Anthony are citizens of New York. See N.Y. Life Ins. Co. v. Apostolidis, 841 F.Supp.2d 711, 717 (E.D.N.Y. 2012) (in an interpleader action, minimal diversity was satisfied where multiple defendants were New York residents and one defendant was a Georgia resident).
" Because this interpleader action is dependent upon diversity of citizenship, New York state law governs the substantive issues in this case." Wilton Reassurance Life Co. of N.Y. v. Garbrecht, No. 13 Civ. 5536 (RJS) (HBP), 2014 WL 6850968, at *8 (S.D.N.Y. Dec. 3, 2014); see Li-Shan Wang v. Primerica Life Ins. Co., No. 09 Civ. 5522 (LMM), 2010 WL 4537092, at *3 (S.D.N.Y. Nov. 5, 2010) (same); Sun Life Assur. Co. of Canada (U.S.) v. Gruber, No. 05 Civ. 10194 (NRB), 2007 WL 4457771, at *5 (S.D.N.Y. Dec. 14, 2007) (finding " no reason to question the applicability of New York law" where, inter alia, " New York is the forum state [and] the place of residence of the decedent"), aff'd, 334 F.App'x 355 (2d Cir. 2009).
B. Standard Of Review On Summary Judgment
On a motion for summary judgment, " [t]he 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-28, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " Before summary judgment may be entered, the district court must ensure that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed. . . . And, of course, the court must determine whether the legal theory of the motion is sound." Jackson v. Fed. Exp., 766 F.3d 189, 194, 198 (2d Cir. 2014) (citations omitted) (further stating that, in a case of a pro se litigant submitting a partial response to a motion for summary judgment, " the district court should examine every claim or defense with a view to determining whether summary judgment is legally and factually appropriate").
" This standard dictates that courts must 'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, " [w]hen the moving party has carried its burden under Rule 56(c), its opponent 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of fact provides evidence from which " a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Rule 56(c)(1) explains that a party's factual positions on summary judgment must be supported by citations " to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A). Litigants in this District are also required to provide a 56.1 statement: " a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried, " and which includes citations to admissible evidence. E.D.N.Y. Local Civ. R. 56.1(a)-(d).
Notwithstanding that courts " are less demanding of [pro se] litigants generally, particularly where motions for summary judgment are concerned, " Jackson, 766 F.3d at 195, " a pro se litigant's 'bald assertion, completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment, '" Geldzahler v. N.Y. Med. Coll., 746 F.Supp.2d 618, 620, n.1 (S.D.N.Y. 2010) (quoting Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995)). Thus, " [u]nsworn letters and statements made without personal knowledge are not admissible evidence under Rule 56 of the Federal Rules of Civil Procedure and cannot be considered in connection with a summary judgment motion." Russo v. N.Y. Presbyterian Hosp., 972 F.Supp.2d 429, 441 n.12 (E.D.N.Y. 2013) (on a motion for summary judgment, disregarding three notarized but unsworn letters; listing cases). Nonetheless, Local Rule 1.9 allows that " [i]n situations in which any Local Rule provides for an affidavit or a verified statement, " the Court may accept as a substitute, " (1) a statement signed by an attorney or by a party not represented by an attorney pursuant to Federal Rule of Civil Procedure 11, or (2) an oral representation on the record in open court." E.D.N.Y. Local Civ. R. 1.9; see E.D.N.Y. Local Civ. R. 7.1(a)(3) (allowing the submission of affidavits in support of motions).
Cognizant that the litigants in this action are proceeding pro se, this Court spent considerable time explaining to Defendants the litigation process and Defendants' obligations as litigants, particularly as to discovery. See, e.g., Tr., Feb. 19, 2013 (" Tr. I") 19:2-20:22, 23:6-25:21, ECF No. 39; Tr. II 5:8-7:2, 17:8-39:6; Tr. III 4:11-6:13, 26:18-28:17, 30:16-33:22. The Court informed Defendants that " if you're going to continue to litigate on your own behalf I can explain some of what goes on here but you need to do a little bit of study yourself." Tr. II 5:15-23. The Court recommended to Defendants the resources available to pro se litigants on the websites of the Eastern District of New York and the Southern District of New York. Id. The Court also specifically informed Defendants that if they wanted to submit an affidavit, " to sign it before a notary." Tr. III 30:6-7. After reviewing the Defendants' submissions, the Court further extended the motion schedule to allow Defendants additional time to:
[F]ile with the Court and serve on all other Defendants any additional documents, affidavits (signed before a notary public), or other evidence appropriate for consideration on a motion for summary judgment. See Fed.R.Civ.P. 56(c)(1)(A); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Avola v. Louisiana-Pacific Corp., 991 F.Supp.2d 381, 2013 WL 4647535, at *4 (E.D.N.Y. 2013). For example, Defendants may wish to supplement their letters (which are not in the form of notarized affidavits) with 1) additional documents, 2) Defendants' own notarized affidavits or 3) notarized affidavits from witnesses with knowledge of relevant matters.
Scheduling Order, Apr. 7, 2014, ECF. Defendants did not make any supplemental filings.
Thus, notwithstanding the Court's instructions (and with the exception of Michael's sworn and notarized motion), Defendants submitted their statements as unsworn letters that were not notarized and did not comply with 28 U.S.C. § 1746. The Court, in its discretion and as permitted by Local Rule 1.9, will consider these submissions, to the extent they are not conclusory or otherwise inappropriate for consideration. See LaPorte v. Fisher, No. 11 Civ. 9458 (PKC) (HBP), 2014 WL 2924992, at *1 (S.D.N.Y. June 27, 2014) (where the pro se litigant had " not submitted a sworn statement in opposition to the [defendants'] motion, the Court will consider the assertions in his Rule 56.1 statement and opposition brief to the extent that they are otherwise admissible"); Cayemittes v. City of N.Y. Dep't of Hous. Pres. & Dev., 974 F.Supp.2d 240, 243 (S.D.N.Y. 2013) (disregarding those portions of a pro se litigant's written statements that the court deemed " conclusory, speculative, irrelevant, argumentative, unsupported or otherwise inappropriate for consideration, " but otherwise considering the pro se litigant's unsworn written statements, " on the assumption that [he] would have testified to such content had he complied with the governing rules"); Jones v. Fed. Bureau of Prisons, No. 11 Civ. 4733 (KAM) (MDG), 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013) (" Because plaintiff is proceeding pro se, this Court will consider the statements and exhibits he submitted in his opposition even though they are not submitted under oath based on the assumption that he would have testified to these statements in a declaration.");
Geldzahler, 746 F.Supp.2d at 620 n.1 (where a pro se litigant was informed " that assertions of material facts must cite to evidence and that witness statements must be in the form of affidavits, " the court, in its discretion, nevertheless considered the pro se litigant's unsworn statements). The Court will also excuse Defendants' failure to comply with Local Rule 56.1. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (the district court has discretion " not to apply Local Rule 56.1").
C. The Defendants' Contentions
To summarize the Defendants' arguments in relevant part,  Michael contends that to the extent Columbus attempted to change his beneficiary to Anthony, any change should be found invalid because Anthony allegedly exerted undue influence over Columbus, took advantage of Columbus's poor health and " tried to falsify" Columbus's signature on the change of beneficiary forms. Michael Mem. 1-2. Michael further contends that Benhester is not Vanessa Smith, and that Benhester does not share the last name of Smith. Id. at 2-3. He points out that Benhester submitted a list of phone numbers for persons who allegedly would confirm her identity, but she did not submit affidavits from those individuals. Id. at 3. Michael therefore concludes that he is the sole " rightful beneficiary to the $25, 000.00  death benefit of his father, Columbis Smith." Id. at 4.
Sakina stated that she was " unopposed" to Michael's motion and that, " [t]here is no one with the legal[ly] documented name Vanessa Smith, leaving Michael Smith as the sole heir of the [Policy]." Sakina Mem. at 1. Thus, Sakina has abandoned her claim on the death benefits, although she asks that the Court continue to consider her Answer, in which she stated her belief that " the policy was intended for me and my husband Michael." Id. at 1; Sakina Answer at 1.
Anthony argues that Columbus made a valid change to his beneficiaries, and explains that Columbus asked Anthony " to help him make change[s] in the paper work." Anthony Mem. I at 1-2.
Benhester alleges that " Benhester" and " Vanessa" " sound the same"; that her name was " mispronounced by [her] father" and " misinterpreted" by the insurance agent; and that she should receive 4/5 of the Policy benefits, " the portion that is stated on the policy." Benhester Mem. at 5-7. Like Michael, Benhester expressed concern with Anthony's influence over Columbus and Columbus's health. Id. at 2.
To support her claim that " Vanessa Smith" refers to her, Benhester submitted the following documents in opposition to the summary judgment motion:
● Portions of Columbus's federal income tax returns, listing " Benherhester, " " Henhepter" or " Benhester" among his dependent children during the years of 1972, 1975, 1980, 1981 and 1982, Benhester Mem. II at Ex. 1;
● An " Acceptance of Employee" form concerning Columbus's Gerson & Gerson Inc. Defined Benefit Pension Plan, naming " Benhester Craig" as his sole beneficiary, dated April 25, 1985, id. at Ex. 2; 
● An American Funds Beneficiary Designation form signed by Columbus and dated March 23, 2005, naming Benhester as the beneficiary of that account, and naming her daughter as the contingent beneficiary, id. at Ex. 3;
● Photographs of Benhester with Columbus, Benhester Mem. I at Ex. 1; see Benhester Answer at 10 (the same photographers, with descriptions).
Benhester had previously submitted, inter alia, the following documents as attachments to her Answer:
● A letter dated October 12, 2011 from Columbus's former employer concerning distribution forms to be completed by Benhester and Benhester's daughter, Benhester Answer at 15;
● An October 18, 2005 fax from " Columbus Smith" to " American Funds Service Center" concerning the distribution of a retirement account and mentioning " my daughter, Benhester Craig, " id at 20-32;
● A " Beneficiary Provision" document from The Equitable, dated February 5, 1987, showing that the beneficiaries of a life insurance policy for " Columbus Smith" included " the Insured's daughter, Benhester Craig, " as well as two grandchildren, id at 46;
● A signed, but not notarized or dated, letter from Louise Crudup (" Ms. Crudup"), stating that she was the foster mother to Benhester, Anthony and Michael from approximately May 1966 to September 1974; referring to " Mr. Smith, the deceased[, ] and  his three children, Benhester, Anthony and Michael"; and stating that " Mr. Smith never mentioned] any other person as [being] one of his children, " id at 47-48; and
● Correspondence showing Benhester's attempts to obtain documents from the Graham Windham foster care agency, id at 49-52.
As described above, Michael moves for summary judgment on the grounds that (1) Columbus Smith did not change the beneficiary of the Policy to be Anthony, and, in the alternative, Michael alleges that Anthony exerted undue influence over Columbus and Columbus was in poor health, and (2) there is no one by the legal name of Vanessa Smith, which allegedly leaves Michael as the sole beneficiary. The Court will address these questions separately.
1. There Is A Material Factual Dispute As To Whether Columbus's Attempts To Change His Beneficiaries Substantially Complied With The Policy
" As a general rule, under . . . New York law, the method prescribed by the insurance contract must be followed in order to effect a change of beneficiary." McCarthy v. Aetna Life Ins. Co., 92 N.Y.2d 436, 440, 704 N.E.2d 557, 560, 681 N.Y.S.2d 790 (1998) (" Such a rule serves the paramount goals of ensuring that life insurance proceeds are disbursed consistently with an insured's stated intent and of preventing the courts and parties from engaging in rank speculation regarding the wishes of the deceased."); see Sun Life & Health Ins. Co. (U.S.) v. Colavito, 14 F.Supp.3d 176, 184 (S.D.N.Y. 2014) (same). However, " [s]trict compliance with the rule is not always required." McCarthy, 92 N.Y.2d at 440, 704 N.E.2d at 560; see Union Cent. Life Ins. Co. v. Berger, No. 10 Civ. 8408 (PGG), 2012 WL 4217795, at *8 (S.D.N.Y. Sept. 20, 2012) (same). Particularly in interpleader actions, " the insurer who has brought the proceeds of the policy into court and requested the court to adjudicate the rights of contesting claimants may no longer insist upon strict compliance with the policy provisions . . . ." Id. at 442, 561; see Lincoln Life & Annuity Co. of New York v. Caswell, 31 A.D.3d 1, 6, 813 N.Y.S.2d 385, 389 (1st Dep't 2006) (" [A]n interpleading insurer is deemed, by paying the policy proceeds into court, to waive exact compliance with the policy's procedures for changing beneficiaries . . . .").
" The paramount factor in resolving the controversy is the intent of the insured. Mere intent, however, on the part of the insured is not enough; there must be some affirmative act or acts on [the part of the insured] to accomplish the change." McCarthy, 92 N.Y.2d at 440, 704 N.E.2d at 560 (quoting Cable v. Prudential Ins. Co. of Am., 89 A.D.2d 636, 636, 453 N.Y.S.2d 86, 88 (3d Dep't 1982)); see MetLife Life & Annuity Co. of Conn. v. Sobie, 326 F.App'x 3, 5 (2d Cir. 2009) (same); Metro. Life Ins. Co. v. Costello, No. 01 Civ. 1751 (NG), 2002 WL 1751398, at *2 (E.D.N.Y. July 25, 2002) (" [I]ntent to change a beneficiary coupled with positive action is sufficient to overcome the failure to comply precisely with the terms of a change of beneficiary provision.").
" [C]ourts have set a high bar for the affirmative acts that satisfy the specific-intent threshold and the allowable reasons for making an incomplete change." Colavito, 14 F.Supp.3d at 186 (collecting cases). The insured's substantial compliance with the terms of the insurance policy will be deemed sufficient to demonstrate his intent when he has " 'done all that was reasonably possible to do to show his intention'" or " has made 'every reasonable effort'" to comply. McCarthy, 92 N.Y.2d at 440, 704 N.E.2d at 560 (quoting Carpenter v. Greene, 396 A.2d 150, 152 (Del. 1978), and Carruthers v. $ 21, 000 (Formerly N.Y. Life Ins. Co.), 290 Pa.Super. 54, 57, 434 A.2d 125, 127 (1981)); see William Penn Life Ins. Co. of N.Y. v. Viscuso, 569 F.Supp.2d 355, 366 (S.D.N.Y. 2008) (" [T]he insured's intent must have been thwarted by circumstances beyond his or her control.").
" [S]peculation on [the insured's] general intent is neither profitable nor permissible." Aetna Life Ins. Co. v. Sterling, 15 A.D.2d 334, 335, 224 N.Y.S.2d 146, 147 (1st Dep't 1962) aff'd, 11 N.Y.2d 959, 183 N.E.2d 325, 229 N.Y.S.2d 9 (1962). Thus, " assertions of [a litigant's] own thoughts and beliefs as to [the] insured's intent are insufficient evidence to raise an issue of material fact absent admissible facts to support those beliefs."
Garbrecht, 2014 WL 6850968, at *11; see Colavito, 14 F.Supp.3d at 187 (evidence " that [the decedent] expressed a general intent to remove [his wife] as a beneficiary, " such as by initiating divorce proceedings and obtaining a protective order to remove her from their home, did not constitute material facts for the purposes of summary judgment, as these facts did not go to his specific intent to comply with the policy's change of beneficiary procedures); JPMorgan Chase Bank, N.A. v. Yuen, No. 11 Civ. 9192 (NRB), 2013 WL 2473013, at *9 (S.D.N.Y. June 3, 2013) (speculation as to the decedent's intent did not raise a genuine issue of material fact where there was no evidence as to actions the decedent took to change his beneficiaries).
Furthermore, assertions about statements allegedly made by Columbus (as well by Mr. Troisi) may be subject to federal hearsay rules and the New York Dead Man's Statute, N.Y. C.P.L.R. 4519.
See generally Gruber, 2007 WL 4457771, at *15. N.Y. C.P.L.R. 4519, which applies in the circumstances of this case through Federal Rule of Evidence 601,  prohibits the testimony of " interested parties" concerning their communications with a decedent. Thus, not only is speculation on Columbus's intent prohibited, but the Court also may not rely on Defendants' recollections as to what Columbus said. Rather, the Court must consider admissible evidence of Columbus's actions and the circumstances that informed those actions.
See Jacques, 396 F.App'x at 710 (considering the timing of the decedent's beneficiary change in relation to his remarriage);
Krishna, 7 F.3d 11, 16 (2d Cir. 1993) (noting that there was " strong evidence in the record" that the plaintiff, an alleged beneficiary, " no longer enjoyed [the insured's] favor, " and stating that this was " a matter to be resolved at trial").
Additionally, the insurer may " contribute to [the insured's] lack of awareness [of noncompliance] in a way that would warrant a finding of substantial compliance."
Colavito, 14 F.Supp.3d at 187; see Lamarche v. Metro. Life Ins. Co., 236 F.Supp.2d 34, 48 (D. Me. 2002) (under New York law, " [s]ubstantial compliance depends not only on the steps taken by the insured to comply with the express terms of the contract, but also on any relevant conduct by the insurer that might impact upon the insured's understanding of what is required under the circumstances.");
see also Berger, 2012 WL 4217795, at *9 (where the insured " twice received written confirmation that the requested change had been made, " his actions demonstrated substantial compliance with the policy's requirements, notwithstanding the insurer's error in confirming the change).
Notably, the Second Circuit has warned that, when considering an insured's intent in naming beneficiaries under New York law, " [s]ummary judgment is notoriously inappropriate for determination of claims in which issues of intent, good faith and other subjective feelings play dominant roles." Krishna, 7 F.3d at 16 (quoting Leberman v. John Blair & Co., 880 F.2d 1555, 1560 (2d Cir. 1989));
see Li-Shan Wang, 2010 WL 4537092, at *4 (concerning the determination of the proper beneficiaries to a life insurance policy, where " 'the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence, then such determination is to be made by the' trier of fact, and summary judgment is inappropriate" (quoting Hartford Acc. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172, 305 N.E.2d 907, 909, 350 N.Y.S.2d 895 (1973))); see also Hartford Life Ins. Co. v. Einhorn, 497 F.Supp.2d 398, 402 (E.D.N.Y. 2007) (same, in the context of a life insurance policy subject to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § § 1001 et seq. (" ERISA")); Connecticut Gen. Life Ins. Co. v. Mitchell, No. 94 Civ. 4648 (LAP), 1995 WL 469714, at *8 (S.D.N.Y. Aug. 8, 1995) (same).
In this case, there is no dispute that the method proscribed by the Policy for changing a beneficiary was not completed because, under the terms of the Policy, " [a] change of Beneficiary does not take effect until recorded by [Wilton], " Am. Compl. Ex. 1 at 5, and no change of beneficiary was recorded. Nevertheless, as Wilton brought this interpleader action, strict compliance is no longer required, and the relevant question is whether Columbus's actions in furtherance of an intent to change his beneficiary substantially complied with the terms of the Policy. As detailed above, Columbus submitted four forms that attempted to make Anthony his sole beneficiary: Columbus's January 24, 2007 attempt was rejected because the insured cannot be the beneficiary; his December 18, 2007 attempt was rejected for the same reason; his third (undated) attempt was rejected, on February 4, 2008, due to his failure to date the form; and his February 13, 2008 attempt was rejected because Wilton required additional documentation related to a request to change Columbus's name. The record contains no evidence that, between February 13, 2008 and his death over three years later, Columbus took any further steps to change his beneficiary or his name as recorded on the Policy. In these circumstances, there is substantial evidence that Columbus did not take every reasonable effort to comply with the Policy. On a motion for summary judgment, however, the inquiry does not end here, as summary judgment is only appropriate if no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law.
Here, notwithstanding Columbus's failure to complete the fifth form, the record raises material questions of fact as to his intent to change his beneficiary and the sufficiency of his attempts to comply with the Policy. First, Columbus executed four change-of-beneficiary forms, each showing an intent to name Anthony as his sole beneficiary. The number and consistency of these attempts raise material questions as to Columbus's intent. Second, on the record before the Court, the circumstances of the rejection of the fourth form raise material questions as to whether Columbus substantially complied with the Policy. Specifically, Wilton appears to have understood Columbus's fourth form as a request to both change his name on the Policy and change his beneficiary, and Wilton rejected the fourth form for reasons that, on the record before the Court, could be construed as solely related to the name change. See Am. Compl. Ex. 10 (instructing Columbus to submit a " valid and legible legal document for name change of the insured"). Moreover, while there is evidence suggesting that Columbus, in his fourth request, was seeking a name change in addition to the beneficiary change,  he did not, in fact, fill out the " Name Change" section of the fourth form or otherwise indicate on the fourth form that he was requesting a name change. For example, he did not cross out the name " Columbis" on the fourth form, as he had done on the third form. Considering these facts in the light most favorable to Anthony--as this Court must on Michael's motion for summary judgment--a reasonable factfinder might conclude that Columbus took all of the actions required of him under the policy to effect a change of beneficiary, and had that change rejected due to a deficiency in a name-change request that he, arguably, had not requested.
Thus, the material facts concerning intent and substantial compliance include Columbus's four attempts to change his beneficiary to Anthony and a record suggesting that Columbus provided all of the information necessary to effect a change of beneficiary (if not a name change). Whether these unique circumstances demonstrate substantial compliance is an issue for the fact finder.
The remaining arguments relevant to the beneficiary change were not supported by admissible evidence. Michael's conclusory allegation that Anthony " tried to falsify" Columbus's signature, Michael Mem. 2, was not supported by evidence, such as a handwriting expert's report. The record also lacks support for Michael and Benhester's allegations of Anthony's undue influence and Columbus's poor health. " Under New York law, a party alleging undue influence 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 against his free will and desire, but which he was unable to refuse or too weak to resist.'"
Gruber, 2007 WL 4457771, at *12 (quoting In re Zirinsky, 43 A.D.3d 946, 841 N.Y.S.2d 637, 639 (2d Dep't 2007)) (further stating that " family pressure" is " precisely what the case law holds does not constitute undue influence"). As to Columbus's poor health, New York law presumes the parties to a contract to be competent, and the burden of proving incapacity " is an extremely heavy one." Id. at *14(quoting Harrison v. Grobe, 790 F.Supp. 443, 447 (S.D.N.Y.1992), aff'd, 984 F.2d 594 (2d Cir. 1993)). To show mental incapacity, the movant must demonstrate that the insured's mind was " so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction." Id. at *14 (quoting Ortelere v. Teachers' Retirement Bd., 25 N.Y.2d 196, 202, 250 N.E.2d 460, 303 N.Y.S.2d 362, 367 (1969)). Here, the record is devoid of evidence addressing these standards, such as medical or financial records, and thus Michael has not met his burden on summary judgment as to these theories.
In summary, the Court finds triable issues of material fact concerning Columbus's intent and substantial compliance with the Policy's change-of-beneficiary provisions, and respectfully recommends that Michael's motion for summary judgment be denied insofar as it requests dismissal of Anthony's claims.
2. There Are Material Issues Of Fact As To Whether " Vanessa Smith" Refers To Benhester Craig
The second prong of Michael's summary judgment motion seeks dismissal of Benhester's claims. The resolution of Benhester's claim is only necessary if the rightful beneficiary is not Anthony. As previously discussed, no person with the legal name of " Vanessa Smith" has come forward, and Defendants do not contend that any person with that legal name exists. No Defendant has argued that Columbus intended to name a " Vanessa Smith" as his beneficiary. Thus, although Defendants disagree as to the identity of the intended beneficiary, they concur that there was a scrivener's error in naming " Vanessa Smith."
" In contract law, a scrivener's error, like a mutual mistake, occurs when the intention of the parties is identical at the time of the transaction but the written agreement does not express that intention because of that error; this permits a court acting in equity to reform an agreement." 27 Williston on Contracts § 70:93 (4th ed.). Reformation of a contract to correct a scrivener's error requires clear and convincing evidence of the parties' intent. See Nash v. Kornblum, 12 N.Y.2d 42, 46, 186 N.E.2d 551, 553, 234 N.Y.S.2d 697 (1962); Wells Fargo Bank N.A. v. Sovereign Bank, N.A., No. 13 Civ. 1222 (NRB), 2014 WL 4412397, at *11 (S.D.N.Y. Sept. 8, 2014). " [C]ourts addressing errors in insurance policies have held that reformation may be proper even when the insurer was not explicitly aware that the policy as written failed to name a party or describe property as intended by the policyholder." Princeton Restoration Corp. v. Int'l Fid. Ins. Co., 338 F.Supp.2d 391, 396 (E.D.N.Y. 2004); see Blakeslee v. Royal Ins. Co. of Am., No. 93 Civ. 1633 (MBM), 1996 WL 694346, at *3 (S.D.N.Y. Dec. 4, 1996) (" In insurance cases, where through unilateral mistake of the insured party the policy misidentifies some detail, such as the identity of the insured or the mortgagee, the mistake is converted to a mutual mistake and the policy may be reformed to reflect the true intention of the insured.").
In a variety of circumstances involving life insurance policies, guarantees, annuities and wills, courts have permitted the reformation of a contract to amend a scrivener's error in a beneficiary's name. For example, in Bigelow, the Second Circuit considered a dispute between the alleged beneficiaries of an employer's life insurance policy and found that there was " no genuine dispute" that beneficiaries named as the insured's " children" " Sherry" and " Theresa" referred to the insured's children " Sherri" and " Tracy, " where the insured had no other children. Metro. Life Ins. Co. v. Bigelow, 283 F.3d 436, 443-44 (2d Cir. 2002). The Court reasoned that naming " Theresa" in place of " Tracy" was " clearly a transcription error." Id. The Court held that the children were identified with " sufficient specificity" and that they were the proper beneficiaries.
Id.  Bigelow concerned a fact pattern where, unlike here, there was no allegation that the insured intended to name a person other than his two daughters, and Bigelow also involved questions of law specific to ERISA, which is not at issue in this action. Nevertheless, Bigelow is instructive insofar as it demonstrates that errors in recording a beneficiary's name may be subject to correction. Thus, the Court must reject Michael's argument that, as a matter of law, he is entitled to summary judgment if there is no person with the legal name of " Vanessa Smith." Cases such as Bigelow make clear that the intended beneficiary may have a remedy in equity.
In this case, drawing all inferences in the non-movant's favor, the record contains sufficient evidence from which a reasonable factfinder might conclude that Columbus intended to name Benhester as the 4/5 beneficiary on the Policy application. In his first and second attempts to make the beneficiary change, Columbus filled in portions of the " Name Change" section in a manner suggesting he understood his current beneficiaries to be Benhester and Michael. Specifically, on the first form, after " From, " he wrote, " Benhester Craig, Michael Smith"; after " To, " he wrote, " Anthony C. Smith"; and after " State reason for change, " he wrote, " Mr. Columbus ask to change." Am. Compl. Ex. 3. On the second form, he checked the box to indicate a change in the beneficiary's name, and after " From, " he wrote, " Michael, Benhester, Change"; after " To, " he wrote, " Anthony Columbus Smith -- 'only''"; and after " State reason for change, " he wrote, " Columbus Smith wanted to change the policy." Id. at Ex. 5. Although this information is in the " Name Change" section rather than the " Beneficiary Change" section, a reasonable factfinder could infer that Columbus was describing the change he wished to make in his beneficiaries, and that he understood his current beneficiaries to be Benhester and Michael.
Furthermore, although her co-Defendants focus on whether Benhester was the biological daughter of Columbus, this inquiry is not dispositive; the Policy did not limit beneficiaries to biological children. The Policy application identifies " Vanessa Smith" as Columbus's " daughter, " and Benhester has provided documents from which a factfinder could infer that Columbus considered Benhester to be his daughter: tax returns claiming Benhester as a dependent, an American Funds Beneficiary Designation form identifying her as his " Daughter, " the fax to American Funds Service Center referring to Benhester as Columbus's " daughter, " and a " Beneficiary Provision" form from The Equitable in which he also referred to her as his " daughter." Benhester Mem. II at Ex. 1, 3; Benhester Answer at 20-32, 46. Benhester's co-Defendants have not submitted evidence that Columbus ever referred to anyone other than Benhester as his " daughter."
To the extent Benhester is able to submit Ms. Crudup's letter in admissible form, that letter would further support Benhester's argument. Ms. Crudup contends that Benhester was one of Columbus's " three children." Benhester Answer at 47-48. Moreover, the Policy application identifies the beneficiaries as a 38-year-old daughter and Michael, a 36-year-old son. Am. Compl. Ex. 2. Ms. Crudup's letter noted that, at the time they were placed with her, " Benhester was 6 [years] old[; ] Anthony was 5 [years old; ] and Michael was 4 [years old], " Benhester Answer at 47, thus identifying Benhester as the daughter who was two years older than Michael.
To be sure, these are not the only inferences that a reasonable fact finder might reach. For example, on documents other than the Policy application, including on tax returns, an " Acceptance of Employee" form concerning a pension plan, and an American Funds beneficiary designation form, Columbus correctly identified Benhester as " Benhester Craig, " demonstrating that he was capable of so doing, and calling into question why he did not do so on the Policy application. Benhester Mem. II at Ex. 1-3. On the Policy application, Columbus identified " Vanessa Smith" as being 38 years old, but at that time, according to the birth date Benhester supplied to Wilton, Benhester would have been 33 years old. Am. Compl. at Ex. 13. Moreover, Defendants have not identified any woman claiming the legal last name of Smith other than Sakina Smith. In addition, Benhester has not provided evidence beyond her own unsworn statement, such as affidavits of nonparties, supporting her assertion that Columbus mispronounced her name.
Nonetheless, as on summary judgment the Court considers the facts in the light most favorable to the non-movant, and Benhester has adduced sufficient evidence that she was the intended beneficiary, Michael has not met his burden on summary judgment. However, as Sakina was unopposed to the motion for summary judgment asserting that Michael is the sole beneficiary, Michael's motion as it pertains to Sakina should be granted. This Court therefore respectfully recommends that his motion be denied as to the request to dismiss Benhester's claims, but granted as to the request to dismiss Sakina's claims.
3. This Court Respectfully Recommends Requiring The Parties To Attend Court-Annexed Mediation
Should this Report and Recommendation be adopted, the pro se Defendants would need to prepare for a bench trial before the Honorable Sandra L. Townes. As discussed above, there are some strengths and weaknesses to each Defendant's position. This Court's recommendation to partially deny Michael's motion for summary judgment is based on the legal standard applicable to such motions. At trial, the factfinder would consider the evidence anew, and not in the light most favorable to certain Defendants. Although the evidence presented a trial could be substantially similar to what was considered on this motion, to the extent the Defendants wish to make other arguments as to Columbus's intent, the Defendants must be prepared to present admissible evidence. Despite being afforded ample time to conduct discovery, Defendants did not use the discovery process to collect documents or obtain the witness testimony that might support the arguments they attempted to make. Moreover, hearsay rules and the New York Dead Man's Statute may limit the types of evidence Defendants can present at trial.
The pro se Defendants have each raised concerns about the time, money and effort they have expended in this case, and the Court is not unsympathetic to these concerns, particularly in light of the possibility of a trial. Therefore, as an alternative to proceeding immediately to trial, this Court respectfully recommends that the pro se Defendants be required to participate in Court-annexed mediation, with Benhester to attend by telephone or videoconference connection, if she cannot attend in person. Court-annexed mediation would provide " an opportunity to explore a wide range of potential solutions and to address interests that may be outside the scope of the stated controversy or which could not be addressed by judicial action." E.D.N.Y. Local Civ. R. 83.8(a); see E.D.N.Y. Local Civ. R. 83.8(f) (providing for pro bono mediation by court order). Although the Court may refer a case to mediation, the ultimate decision on whether to accept any resolution that might be proposed during settlement discussions remains, as always, with each Party.
At least two Defendants have expressed an interest in reaching an amicable resolution of these claims through settlement discussions. The third Defendant has not stated a position on settlement discussions, but she has expressed a desire for this case to be resolved immediately. This Court therefore respectfully recommends that, should this Report and Recommendation be adopted, that an order issue designating this case for Court-annexed mediation pursuant to Local Civil Rule 83.8.
For the reasons stated above, this Court respectfully recommends that Michael's motion for summary judgment be granted in part and denied in part. Specifically, this Court recommends dismissing Sakina's claims, but denying the summary judgment motion as it pertains to Michael's, Anthony's and Benhester's claims. This Court further recommends that an order be issued designating this case for Court-annexed mediation pursuant to Local Civil Rule 83.8(b)(1).
Chambers will mail a copy of this Report and Recommendation to each Defendant at the address listed on the docket and will also email a copy of the Report and Recommendation to the email address provided by Benhester Craig.
Written objections to this Report and Recommendation must be filed with the Clerk of Court in accordance with the Individual Rules of the District Judge within fourteen days of service of this report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. Proc. 72(b). Failure to file objections within the specified time waives the right to appeal any order or judgment entered based on this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. Proc. 72(b); see Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).