A death benefit payable by a New York Employees’ Retirement System is a testamentary substitute that may permit a non-designated spouse to exercise his or her “right of election”
Gopaul v New York City Employees' Retirement Sys., 2014 NY Slip Op 08020, Appellate Division, Second Department
Shakuntala Devi Tika Gopaul, the widow of a member of the New York City Employees' Retirement System (NYCERS), sued NYCERS after it refused to accept her late husband's fully completed and notarized designation of beneficiary form naming her as his sole beneficiary.
Gopaul filed her petition in Supreme Court seeking an order to require NYCERS to accept, as effective, a designation of beneficiary form naming her as the sole beneficiary of her late husband's death benefit rather than to her late husband's sons, who were previously designated as his beneficiaries.
The Appellate Division noted that this proceeding could potentially involve the administration of a decedent's estate because the death benefit payable by NYCTRS is a testamentary substitute against which the Gopaul could exercise a right of election even if it was determined that she was not the designated beneficiary.
As the Surrogate's Court declined to exercise jurisdiction over this proceeding before it was commenced in the Supreme Court, the Appellate Division said that the Supreme Court “providently exercised its discretion in denying that branch of NYCERS' motion s pursuant to CPLR §325(e) to remove this proceeding to the Surrogate's Court.”
The Appellate Division also ruled that Supreme Court properly denied NYCERS' alternative motion seeking to dismiss the Gopaul’s petition as time-barred. In this proceeding, which was in the nature of mandamus to compel NYCERS to perform a ministerial act, the Appellate Division said that the four-month statute of limitations begins to run "after the NYCERS's refusal, upon the demand of [Gopaul] . . . to perform its duty."
As the filing of a CPLR Article 78 petition can itself be construed as a demand, the Appellate Division ruled that as Gopaul made her demand that NYCERS perform its duty to accept her late husband's fully completed and notarized designation of beneficiary form by filing the petition in this proceeding in February 2012, the petition is not time-barred.
The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2014/2014_08020.htm