Preview
FILED: KINGS COUNTY CLERK 11/07/2022 02:57 PM INDEX NO. 524429/2022
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/07/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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In the Matter of the Application of AFFIRMATION IN
SUPPORT
Affrose Benetos, as Executor of the Estate of Motilal Deo,
Deceased and Affrose Benetos and Jacqueline Roman, Index No. 524429/2022
Petitioners,
-against-
The New York City Employees Retirement System,
Respondent.
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STACY D’CUNHA-RUBIN, an attorney admitted to practice law in the State of New
York and an Assistant Corporation Counsel in the office of HON. SYLVIA O. HINDS-RADIX,
Corporation Counsel of the City of New York, attorney of record for the respondent, THE NEW
YORK CITY EMPLOYEES’ RETIREMENT SYSTEM (hereinafter “NYCERS”), affirms the
truth of the following under the penalties of perjury pursuant to CPLR § 2106, upon information
and belief based upon the records maintained in this office:
1. I am familiar with the facts and circumstances of the instant proceeding
based upon the relevant documents annexed hereto, my review of the records and files maintained
by the City of New York, and my conversations with employees, officers, and agents of the City
of New York.
2. This affirmation and annexed exhibits are submitted in support of the
motion of respondent NYCERS, which seeks an Order pursuant to CPLR § 3211 (a)(10) and CPLR
§ 217, dismissing the petition for failure to join a necessary party, as well on as the basis that the
claims are time barred; and for such other relief as this Court may deem just and proper.
RELEVANT AND MATERIAL FACTS
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3. Motilal Deo (the “Decedent” or the “Deceased”), a former employee of the
New York City Fire Department, became a member of NYCERS on or about September 18, 2001.
A copy of the decedent’s NYCERS membership application is annexed hereto as Exhibit “A.”
4. On the decedent’s NYCERS membership application, in the Designation of
Beneficiary part of the application, the decedent designated his son, Anthony Deo, as the primary
beneficiary of the decedent’s Ordinary Death Benefit. See Exhibit A.
5. Petitioners allege that on February 3, 2020, the decedent executed a general
power of attorney and designated his alleged life partner, Affrose Benetos, and their daughter,
Jacqueline Roman, as his agents, respectively. See Exhibit B.
6. Petitioners allege that on June 3, 2020, petitioner Benetos mailed a letter
addressed to NYCERS in which she wrote “I am writing to your office acting as POA on behalf of
Motilal Deo to change the beneficiary on his account to our daughter Jacqueline Roman. I am
including POA of attorney.” See NYSCEF document 3.
7. On June 4, 2020, petitioner Benetos logged into the decedent’s NYCERS
account and submitted an updated designation of beneficiary request, requesting to change the
designated beneficiary from Anthony Deo to Jacqueline Roman. See Exhibit C.
8. On June 5, 2020, NYCERS informed the decedent that it was in receipt of
his updated designation of beneficiary request and if approved, the updated designation would
replace any other designations of beneficiary(ies) that were previously provided. The letter dated
June 5, 2020 also states that if Motilal Deo did not request the updates, he should contact NYCERS
as soon as possible. See Exhibit D.
9. On June 17, 2020, the POA granted to petitioners was null due to the death
of the deceased. See Exhibit B.
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10. Upon information and belief, on June 4, 2020, petitioners mailed an
Affidavit that Power of Attorney is in full force as attorney-in-fact under a POA, Form # 203.
11. On June 17, 2020, NYCERS sent a letter to petitioners explaining that the
June 4, 2020 Affidavit submitted could not be implemented because an Affidavit that Power of
Attorney is in full force as attorney-in-fact under a POA for Motilal Deo is not sufficient to
acknowledge a POA because NYCERS did not receive the underlying POA, and an original POA
or a Special Durable Power of Attorney Form #204 must be submitted to NYCERS for review. See
Exhibit E. As of June 17, 2020, NYCERS had not received the underlying power of attorney. Id.
12. On June 25, 2020, petitioner Roman informed NYCERS that the deceased
had died. See Exhibit F.
13. On June 29, 2020, NYCERS sent a letter addressed to petitioner Roman
stating that in order to process any death benefit, an original death certificate is required. See
Exhibit G.
14. On July 7, 2020, petitioner Roman sent a copy of the deceased’s death
certificate to NYCERS. See Exhibit H.
15. On July 20, 2020, NYCERS received FDNY’s Employee Status Change
Notification F#234 informing NYCERS of the decedent’s death, effective June 18, 2020. See
Exhibit I.
16. By written correspondence dated March 3, 2022, petitioner Benetos
informed NYCERS that the deceased had passed away on June 17, 2020. In the March 3, 2022
correspondence, petitioner Benetos states that she changed the designated beneficiary to Jacqueline
Roman on June 4, 2020, online, by logging into the deceased’s NYCERS account, believing herself
to be acting under the authority pursuant to the POA she had at the time. See Exhibit J.
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17. By written correspondence dated March 17, 2022, NYCERS informed
petitioner Benetos that it will not honor the online change to the designated beneficiary because use
of the online account is limited to the NYCERS member and may not be accessed by anyone else,
including any authorized representative. Therefore, petitioner Benetos’ attempt to change the
beneficiary online by logging into the deceased’s NYCERS account was invalid. The March 17,
2022, correspondence also states that NYCERS will release any funds with respect to the deceased
in accordance with the most recent valid designation of beneficiary form on file. The March 17,
2022 correspondence was NYCERS’ final determination. See Exhibit K and Exhibit L.
18. On August 23, 2022, petitioners filed the subject petition in this Court
requesting this Court to order NYCERS to acknowledge the June 4, 2020, change in the designation
of beneficiary, made online through the decedent’s NYCERS account, as a valid designation of
beneficiary. See NYSCEF document 1.
THE INSTANT PROCEEDING MUST BE DISMISSED AS THE MATTER IS TIME
BARRED
19. The subject petition should be dismissed because the statute of limitations
to bring an Article 78 proceeding has expired, since more than four months have passed since
NYCERS’ final determination on March 17, 2022.
20. CPLR § 217 states that an Article 78 proceeding must be commenced within
four months of an agency’s final determination, unless a shorter time is provided for in the law
authorizing the proceeding.
21. Here, the four month statute of limitation applies because no shorter time
period is provided for in the applicable law.
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22. NYCERS made a final determination on March 17, 2022, which informed
petitioners, by letter correspondence, that NYCERS would release any funds in accordance with
the most recent valid designated beneficiary on file. See Exhibit K.
23. Petitioners filed the subject petition on August 23, 2022, which is more than
four months after NYCERS’ March 17, 2022 final determination; thus, the instant proceeding is
time barred.
THE INSTANT PROCEEDING MUST BE DISMISSED BECAUSE PETITIONERS
FAIL TO NAME A NECESSARY PARTY TO THE PROCEEDING
24. The subject petition should be dismissed because the petitioners have failed
to name a necessary party, Anthony Deo, the decedent’s son and the most recent valid designation
of beneficiary on file with NYCERS, in the subject proceeding.
25. CPLR § 1001(a) defines a necessary party to an action or proceeding as any
person “who might be inequitably affected by a judgment in the action.” The failure to join a
necessary party is a ground for dismissal of a matter. See CPLR §§ 3211(a)(10) and 1003.
26. Anthony Deo has a material interest in the subject proceeding because
according to NYCERS’ records, he is the valid beneficiary of the deceased’s pension. Should this
Court find that the petitioners are valid beneficiaries who are entitled to the deceased’s pension,
the interests of Anthony Deo would be adversely affected. Therefore, the instant proceeding cannot
proceed in the absence of a necessary party.
27. Furthermore, petitioners cannot now seek to join Anthony Deo as a party
because, as explained supra, the statute of limitations has expired; thus, the relation-back doctrine
is inapplicable in the subject matter.
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WHEREFORE, it is respectfully requested that the cross-motion of Respondent
NYCERS to dismiss the subject proceeding be granted in its entirety.
Dated: New York, New York
November 7, 2022
HON. SYLVIA O. HINDS RADIX
Corporation Counsel of the
City of New York
Attorney for Respondent
100 Church Street,
New York, New York 10007
(212) 356-3191
By: _________________________
Stacy D’Cunha-Rubin
Assistant Corporation Counsel
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Preview
FILED: KINGS COUNTY CLERK 11/07/2022 02:57 PM INDEX NO. 524429/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------x In the Matter of the Application of AFFIRMATION IN SUPPORT Affrose Benetos, as Executor of the Estate of Motilal Deo, Deceased and Affrose Benetos and Jacqueline Roman, Index No. 524429/2022 Petitioners, -against- The New York City Employees Retirement System, Respondent. -----------------------------------------------------------------------x STACY D’CUNHA-RUBIN, an attorney admitted to practice law in the State of New York and an Assistant Corporation Counsel in the office of HON. SYLVIA O. HINDS-RADIX, Corporation Counsel of the City of New York, attorney of record for the respondent, THE NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM (hereinafter “NYCERS”), affirms the truth of the following under the penalties of perjury pursuant to CPLR § 2106, upon information and belief based upon the records maintained in this office: 1. I am familiar with the facts and circumstances of the instant proceeding based upon the relevant documents annexed hereto, my review of the records and files maintained by the City of New York, and my conversations with employees, officers, and agents of the City of New York. 2. This affirmation and annexed exhibits are submitted in support of the motion of respondent NYCERS, which seeks an Order pursuant to CPLR § 3211 (a)(10) and CPLR § 217, dismissing the petition for failure to join a necessary party, as well on as the basis that the claims are time barred; and for such other relief as this Court may deem just and proper. RELEVANT AND MATERIAL FACTS 1 of 6 FILED: KINGS COUNTY CLERK 11/07/2022 02:57 PM INDEX NO. 524429/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/07/2022 3. Motilal Deo (the “Decedent” or the “Deceased”), a former employee of the New York City Fire Department, became a member of NYCERS on or about September 18, 2001. A copy of the decedent’s NYCERS membership application is annexed hereto as Exhibit “A.” 4. On the decedent’s NYCERS membership application, in the Designation of Beneficiary part of the application, the decedent designated his son, Anthony Deo, as the primary beneficiary of the decedent’s Ordinary Death Benefit. See Exhibit A. 5. Petitioners allege that on February 3, 2020, the decedent executed a general power of attorney and designated his alleged life partner, Affrose Benetos, and their daughter, Jacqueline Roman, as his agents, respectively. See Exhibit B. 6. Petitioners allege that on June 3, 2020, petitioner Benetos mailed a letter addressed to NYCERS in which she wrote “I am writing to your office acting as POA on behalf of Motilal Deo to change the beneficiary on his account to our daughter Jacqueline Roman. I am including POA of attorney.” See NYSCEF document 3. 7. On June 4, 2020, petitioner Benetos logged into the decedent’s NYCERS account and submitted an updated designation of beneficiary request, requesting to change the designated beneficiary from Anthony Deo to Jacqueline Roman. See Exhibit C. 8. On June 5, 2020, NYCERS informed the decedent that it was in receipt of his updated designation of beneficiary request and if approved, the updated designation would replace any other designations of beneficiary(ies) that were previously provided. The letter dated June 5, 2020 also states that if Motilal Deo did not request the updates, he should contact NYCERS as soon as possible. See Exhibit D. 9. On June 17, 2020, the POA granted to petitioners was null due to the death of the deceased. See Exhibit B. 2 of 6 FILED: KINGS COUNTY CLERK 11/07/2022 02:57 PM INDEX NO. 524429/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/07/2022 10. Upon information and belief, on June 4, 2020, petitioners mailed an Affidavit that Power of Attorney is in full force as attorney-in-fact under a POA, Form # 203. 11. On June 17, 2020, NYCERS sent a letter to petitioners explaining that the June 4, 2020 Affidavit submitted could not be implemented because an Affidavit that Power of Attorney is in full force as attorney-in-fact under a POA for Motilal Deo is not sufficient to acknowledge a POA because NYCERS did not receive the underlying POA, and an original POA or a Special Durable Power of Attorney Form #204 must be submitted to NYCERS for review. See Exhibit E. As of June 17, 2020, NYCERS had not received the underlying power of attorney. Id. 12. On June 25, 2020, petitioner Roman informed NYCERS that the deceased had died. See Exhibit F. 13. On June 29, 2020, NYCERS sent a letter addressed to petitioner Roman stating that in order to process any death benefit, an original death certificate is required. See Exhibit G. 14. On July 7, 2020, petitioner Roman sent a copy of the deceased’s death certificate to NYCERS. See Exhibit H. 15. On July 20, 2020, NYCERS received FDNY’s Employee Status Change Notification F#234 informing NYCERS of the decedent’s death, effective June 18, 2020. See Exhibit I. 16. By written correspondence dated March 3, 2022, petitioner Benetos informed NYCERS that the deceased had passed away on June 17, 2020. In the March 3, 2022 correspondence, petitioner Benetos states that she changed the designated beneficiary to Jacqueline Roman on June 4, 2020, online, by logging into the deceased’s NYCERS account, believing herself to be acting under the authority pursuant to the POA she had at the time. See Exhibit J. 3 of 6 FILED: KINGS COUNTY CLERK 11/07/2022 02:57 PM INDEX NO. 524429/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/07/2022 17. By written correspondence dated March 17, 2022, NYCERS informed petitioner Benetos that it will not honor the online change to the designated beneficiary because use of the online account is limited to the NYCERS member and may not be accessed by anyone else, including any authorized representative. Therefore, petitioner Benetos’ attempt to change the beneficiary online by logging into the deceased’s NYCERS account was invalid. The March 17, 2022, correspondence also states that NYCERS will release any funds with respect to the deceased in accordance with the most recent valid designation of beneficiary form on file. The March 17, 2022 correspondence was NYCERS’ final determination. See Exhibit K and Exhibit L. 18. On August 23, 2022, petitioners filed the subject petition in this Court requesting this Court to order NYCERS to acknowledge the June 4, 2020, change in the designation of beneficiary, made online through the decedent’s NYCERS account, as a valid designation of beneficiary. See NYSCEF document 1. THE INSTANT PROCEEDING MUST BE DISMISSED AS THE MATTER IS TIME BARRED 19. The subject petition should be dismissed because the statute of limitations to bring an Article 78 proceeding has expired, since more than four months have passed since NYCERS’ final determination on March 17, 2022. 20. CPLR § 217 states that an Article 78 proceeding must be commenced within four months of an agency’s final determination, unless a shorter time is provided for in the law authorizing the proceeding. 21. Here, the four month statute of limitation applies because no shorter time period is provided for in the applicable law. 4 of 6 FILED: KINGS COUNTY CLERK 11/07/2022 02:57 PM INDEX NO. 524429/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/07/2022 22. NYCERS made a final determination on March 17, 2022, which informed petitioners, by letter correspondence, that NYCERS would release any funds in accordance with the most recent valid designated beneficiary on file. See Exhibit K. 23. Petitioners filed the subject petition on August 23, 2022, which is more than four months after NYCERS’ March 17, 2022 final determination; thus, the instant proceeding is time barred. THE INSTANT PROCEEDING MUST BE DISMISSED BECAUSE PETITIONERS FAIL TO NAME A NECESSARY PARTY TO THE PROCEEDING 24. The subject petition should be dismissed because the petitioners have failed to name a necessary party, Anthony Deo, the decedent’s son and the most recent valid designation of beneficiary on file with NYCERS, in the subject proceeding. 25. CPLR § 1001(a) defines a necessary party to an action or proceeding as any person “who might be inequitably affected by a judgment in the action.” The failure to join a necessary party is a ground for dismissal of a matter. See CPLR §§ 3211(a)(10) and 1003. 26. Anthony Deo has a material interest in the subject proceeding because according to NYCERS’ records, he is the valid beneficiary of the deceased’s pension. Should this Court find that the petitioners are valid beneficiaries who are entitled to the deceased’s pension, the interests of Anthony Deo would be adversely affected. Therefore, the instant proceeding cannot proceed in the absence of a necessary party. 27. Furthermore, petitioners cannot now seek to join Anthony Deo as a party because, as explained supra, the statute of limitations has expired; thus, the relation-back doctrine is inapplicable in the subject matter. 5 of 6 FILED: KINGS COUNTY CLERK 11/07/2022 02:57 PM INDEX NO. 524429/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/07/2022 WHEREFORE, it is respectfully requested that the cross-motion of Respondent NYCERS to dismiss the subject proceeding be granted in its entirety. Dated: New York, New York November 7, 2022 HON. SYLVIA O. HINDS RADIX Corporation Counsel of the City of New York Attorney for Respondent 100 Church Street, New York, New York 10007 (212) 356-3191 By: _________________________ Stacy D’Cunha-Rubin Assistant Corporation Counsel 6 of 6