Undue Influence Plaintiff Defeats Summary Judgment Despite Failure To Cite Facts In The Record To Oppose The Motion; But Certain Claims Are Dismissed For Failure To file An Affidavit Of Merit

In the December 13, 2011 Estate of Sano Chancery Division case, the decedent’s wife had sued the decedent’s former employee (Ms. Chung) and that employee’s sister (Ms. Choi), claiming that they defrauded and unduly influenced the decedent to change a beneficiary designation of a $2.5 million life insurance policy. The policy had originally named the decedent’s business as primary beneficiary and his wife as secondary beneficiary, but was later changed to name Ms. Chung as the sole beneficiary. Ms. Chung and Ms. Choi were sisters of the decedent’s former business partner. Ms. Chung was the decedent’s long-time employee and friend, and the two allegedly began a romantic relationship after the beneficiary designation change. Ms. Choi was the decedent’s insurance agent who obtained both the original policy and the beneficiary change in issue.

Before the court was a motion for summary judgment, in which the defendants argued that the plaintiff had “no knowledge of any facts underlying the allegations set forth in her complaint.” (Slip op. at 5). Defendants asserted that, because plaintiff’s complaint was based upon speculation, summary judgment was appropriate. Defendant Choi also argued that plaintiff’s claims of negligence and breach of fiduciary duty against her should be dismissed for failure to file an affidavit of merit.

Although acknowledging the plaintiff’s “inability to point to specific facts in the record in opposing … summary judgment” (slip op. at 23), the court rejected the defendants’ emphasis on the plaintiff’s claims being implausible. The court acknowledged that plaintiff would face “significant hurdles” at the time of trial. Nevertheless, it noted that, in a summary judgment motion, the court is not required to determine the likelihood of success at trial. As to the claims of undue influence, fraud, conspiracy, unjust enrichment and conversion, the court found that genuine issues of material fact existed, such that summary judgment was inappropriate.

However, with respect to the claims of breach of fiduciary and negligence that were asserted against Ms. Choi, the court found those claims were alleging professional malpractice against Ms. Choi. Because there was no evidence that Ms. Choi’s actions were negligence as a matter of law, the court concluded that an expert would be needed, and that the plaintiff’s failure to provide an expert report or file an affidavit of merit necessitated dismissal of those claims.

A copy of the December 13, 2011 opinion can be found here – Estate of Sano