American International Life Assurance Co. v. Kandros

Appellate Division of the Supreme Court of New York

American International Life Assurance Co. v. Kandros

254 A.D.2d 34, 678 N.Y.S.2d 20, 1998 N.Y. App. Div. LEXIS 9923

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 1998

StatusPublished

This text of 254 A.D.2d 34 (American International Life Assurance Co. v. Kandros) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American International Life Assurance Co. v. Kandros, 254 A.D.2d 34, 678 N.Y.S.2d 20, 1998 N.Y. App. Div. LEXIS 9923 (N.Y. Ct. App. 1998).

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Opinion

Judgment, Supreme Court, New York County (Louise Gruner Gans, J.), entered September 15, 1997, which awarded Elias Nicolakis the total amount of $111,249.66, and bringing up for review an order of the same court and Justice entered August 12, 1997, granting said defendant’s motion for summary judgment and denying the cross motion of defendants Evangelia Kandros and Nikitas Nicolakis to amend their cross claim for imposition of a constructive trust, unanimously affirmed, with costs.

The IAS Court properly granted summary judgment awarding Elias Nicolakis, as owner and sole beneficiary, the proceeds of the policy issued by plaintiff insuring the life of the decedent, Elias’ brother (see, Green & Co. v William Penn Life Ins. Co., 220 AD2d 317). The court also properly refused to grant the children of the decedent, defendants Evangelia Kandros and Nikitas Nicolakis, permission to amend their cross claim for the imposition of a constructive trust on the policy proceeds. The version of events told by Kandros in her affidavit in support of the cross motion was inconsistent with the pleading as to which amendment was sought even though the occurrences described in her affidavit had taken place prior to the time the pleading sought to be amended had been filed. Moreover, contrary to the cross movants’ contention, receipt of the proceeds by Elias Nicolakis did not constitute unjust enrichment since he had paid actual consideration for the policy by making the premium payments, either directly or indirectly, to plaintiff for approximately four years (cf., Markwica v Davis, 64 NY2d 38, 41). Concur — Milonas, J. P., Rosenberger, Ellerin and Andrias, JJ.

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Judgment, Supreme Court, New York County (Louise Gruner Gans, J.), entered September 15, 1997, which awarded Elias Nicolakis the total amount of $111,249.66, and bringing up for review an order of the same court and Justice entered August 12, 1997, granting said defendant’s motion for summary judgment and denying the cross motion of defendants Evangelia Kandros and Nikitas Nicolakis to amend their cross claim for imposition of a constructive trust, unanimously affirmed, with costs.

The IAS Court properly granted summary judgment awarding Elias Nicolakis, as owner and sole beneficiary, the proceeds of the policy issued by plaintiff insuring the life of the decedent, Elias’ brother (see, Green & Co. v William Penn Life Ins. Co., 220 AD2d 317). The court also properly refused to grant the children of the decedent, defendants Evangelia Kandros and Nikitas Nicolakis, permission to amend their cross claim for the imposition of a constructive trust on the policy proceeds. The version of events told by Kandros in her affidavit in support of the cross motion was inconsistent with the pleading as to which amendment was sought even though the occurrences described in her affidavit had taken place prior to the time the pleading sought to be amended had been filed. Moreover, contrary to the cross movants’ contention, receipt of the proceeds by Elias Nicolakis did not constitute unjust enrichment since he had paid actual consideration for the policy by making the premium payments, either directly or indirectly, to plaintiff for approximately four years (cf., Markwica v Davis, 64 NY2d 38, 41). Concur — Milonas, J. P., Rosenberger, Ellerin and Andrias, JJ.

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Bluebook (online)

254 A.D.2d 34, 678 N.Y.S.2d 20, 1998 N.Y. App. Div. LEXIS 9923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-international-life-assurance-co-v-kandros-nyappdiv-1998.

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