Rut v. Young Adult Inst. Inc.

• Decision Date: 01 June 2010
• Citation: Rut v. Young Adult Inst. Inc., 74 A.D.3d 776, 901 N.Y.S.2d 715, 2010 N.Y. Slip Op. 4764 (N.Y. App. Div. 2010)
• Parties: Kathleen RUT, appellant,v.YOUNG ADULT INSTITUTE, INC., et al., respondents.
• Court: New York Supreme Court — Appellate Division

74 A.D.3d 776

901 N.Y.S.2d 715

2010 N.Y. Slip Op. 04764

Kathleen RUT, appellant,

v.YOUNG ADULT INSTITUTE, INC., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 1, 2010.

The Law Office of Adam E. Faber, LLC, Great Neck, N.Y. (Eric B. Eubanks of counsel), for appellant.Senerchia & Kelly, P.C., White Plains, N.Y. (John B.F. Kelly of counsel), for respondents.STEVEN W. FISHER, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action to recover damages for breach of contract and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), dated December 10, 2008, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211.

ORDERED that the order is affirmed, with costs.

The plaintiff's husband, an employee of the defendant Young Adult Institute, Inc. (hereinafter YAI), for more than 25 years, died in 2006 while still employed by YAI. At that time, the plaintiff became the successor beneficiary of her husband's retirement and employee benefit plans. One of those plans, the Supplemental Pension Plan and Trust for Certain Management Employees of YAI (hereinafter the Plan) provided a monthly income payment to the beneficiary for life. The plaintiff asserts in her complaint that after her husband's death, the defendant Joel M. Levy, the Chief Executive Officer of YAI, orally offered to make an unspecified lump sum payment to her in lieu of the monthly payments that she was entitled to under the Plan. The complaint further alleges that, after negotiations, YAI agreed to pay the plaintiff her benefits in the form of an annuity. On or about December 28, 2007, the plaintiff received a proposed release, which she signed, after unilaterally adding additional terms to the release that required, inter alia, that a commercial insurance product be purchased at YAI's expense to fund the annuity. This additional term was rejected by YAI.

When YAI failed to purchase a commercial insurance product to fund the annuity, the plaintiff commenced this action against the defendants alleging that (1) although she released her claims against YAI in exchange for the protection afforded by the purchase of a commercial insurance product to fund the annuity, no annuity was purchased, (2) the defendants were required to make a lump sum payment to her in excess of $3,000,000 by virtue of an oral promise make by Joel M. Levy, the...