OPINION AND ORDER
Plaintiff The Guardian Life Insurance Company (“Guardian”) brings this Inter-pleader Action under 28 U.S.C. § 1335, seeking, among other forms of relief, discharge from all liability in connection with a life-insurance policy (“the Policy”) that it issued to Robert C. Gilmore (“Decedent”) in 1984. Following Decedent’s death in 2013, three Parties asserted entitlement to all or part of the Policy’s proceeds: Defendant Nanette S. Gilmore (“Gilmore”), Decedent’s wife; Defendant Barbara Gilmore-Smit (“Gilmore-Smit”), Decedent’s mother; and Defendant Applebee-McPhil-lips Funeral Home, Inc. (“Applebee-McPhillips”), the funeral home that provided funeral services to Decedent’s family after his passing. Gilmore has moved for summary judgment against Gilmore-Smit and Applebee-McPhillips, claiming that, as the Policy’s sole beneficiary, she is entitled to all of its proceeds, and that she has paid Applebee-McPhillips the full amount of the bill for Decedent’s funeral expenses. For the following reasons, the Court grants some, but not all, of the relief that Guardian requests, and grants in part and denies in part Gilmore’s Motion for Summary Judgment.
I. BACKGROUND
A. Factual Background
The following facts are undisputed. On or about April 3, 1984,' Guardian issued the
Decedent died on February 5, 2013, approximately nine months after he filed the Form. (See Gilmore’s 56.1 Statement ¶ 6; id. Ex. B (“Certificate of Death”); June 24 Gilmore-Smit Letter (describing Decedent’s death as occurring on February 5, 2013).) Decedent’s death certificate lists his immediate cause of death as liver cancer, due to or as a consequence of cirrhosis and alpha-1 antitrypsin deficiency. (See Certificate of Death; see also June 24 Gilmore-Smit Letter (describing Decedent’s liver cancer).) Three days later, on February 8, 2013, Applebee-McPhillips filed an Insurance Proceeds Assignment (“the Assignment”) with Guardian, through which it sought $7,475 of the Policy’s proceeds for the payment of Decedent’s funeral expenses. (See Gilmore’s 56.1 Statement ¶ 9.) The Assignment was signed by Gilmore. (See id.) Approximately one month later, on March 6, 2013, Gilmore filed a Claimant’s Statement with Guardian, through which she sought to recover the entirety of the Policy’s proceeds. (See Gilmore’s 56.1 Statement ¶ 7; id. Ex. C.) As of the date of Decedent’s death, such proceeds totaled $164,777, with interest payable from that date at the rate of three percent per year. (See Gilmore’s 56.1 Statement ¶ 11.) Gilmore-Smit thereafter notified Guardian that she contested Gilmore’s claim to such proceeds. (See id. ¶ 8.)
There are only two facts in dispute in this Action. The first is whether Decedent had the mental capacity to execute the Form changing the Policy’s beneficiary from Gilmore-Smit to Gilmore in April 2012. In a letter that she submitted to the Court before Gilmore filed her Motion, Gilmore-Smit stated that she “think[s]” that, in the months leading up to Decedent’s death, Decedent “was on heavy doses of morphine due to ... ammonia on the brain,” and that as a result, “he was not of sound mind,” and “unknowingly signed something ... which changed the beneficiary or gave someone power of attorney to do so.” (June 24 Gilmore-Smit Letter.) For her part, Gilmore states that “the presumption by law is that [Decedent] had legal capacity to change the beneficiary of [the Policy,] and that no evidence has been given to overcome this presumption.” (Gilmore’s Mem. of Law in Supp. of Mot. for Summ. J. (“Gilmore’s Mem.”) at unnumbered 1 (Dkt. No. 21).) Gilmore has also submitted various affidavits through which she seeks to show that Decedent was in fact capable at the time that the
The second fact in dispute is whether, as Gilmore claims, “the Applebee-MePhillips funeral bill was paid in full out of [Gilmore’s] personal funds,” which would mean that “Applebee-MePhillips no longer has any rights to any portion of the insurance proceeds.” (Gilmore’s 56.1 Statement ¶ 10.) Gilmore has submitted what appears to be a May 13, 2013 funeral bill from Applebee-MePhillips, at the bottom of which Applebee-MePhillips appears to state, “Thank you, the funeral expenses for Robert are paid in full.” (See id. Ex. D (“Funeral Bill”).) Applebee-MePhillips has failed to appear or take any action in this matter.
B. Procedural Background
Guardian filed an Interpleader Complaint on April 23, 2013. (See Compl. (Dkt. No. 1).) In its Complaint, Guardian states that it “is indifferent and disinterested as to which of ... [Defendants is entitled to the proceeds of the [P]olicy or to the division of the proceeds among them”; that it is “unable to determine to whom the amount due under the [P]olicy is payable” or “which of ... [Defendants is entitled to payment”; and that, as a result, it “is, or may be, exposed to multiple liability.” (Id. ¶¶ 21-22.) Accordingly, Guardian seeks the following relief:
(1) That each of ... [Defendants be restrained from instituting or maintaining any action against [Guardian] for the recovery of the proceeds of [the Policy] or any action seeking any part of these proceeds;
(2) [An order] [Requiring [Defendants to interplead together concerning their claims to the proceeds;
(3) That upon payment of the proceeds of the ... [P]olicy into the Registry of this Court that [Guardian] be discharged from all further liability on the [P]olicy or for the proceeds payable on it;
(4) For such other and further relief as the Court deems just and proper, together with expenses, costs and disbursements of this [A]ction payable from the proceeds of the ... [P]olicy.
(Id. at 4.)
A summons was issued to Applebee-MePhillips, Gilmore, and Gilmore-Smit on the same day that Guardian filed its Complaint. (See Summons (Dkt. (minute entry for Apr. 23, 2013)).) On May 10, 2013, Guardian sent Gilmore-Smit a waiver of the service of summons, an executed version of which Gilmore-Smit returned on June 5, 2013. (See Waiver of Service Returned Executed (Dkt. No. 2.).) Guardian sent the waiver that Gilmore-Smit returned to an address in Brooksville, Florida. (See id.) On June 27, 2013, Gilmore answered Guardian’s Complaint and filed a cross-claim against Gilmore-Smit, (see Answer and Cross-Claim (Dkt. No. 6)), a copy of which Gilmore sent to the same Brooksville, Florida address to which Guardian sent the waiver, (see Aff. of Service of Answer and Cross-Claim (Dkt. No. 7)). Gilmore-Smit responded in a letter that she submitted to the Court on July 1, 2013. (See June 24 Gilmore-Smit Letter.)
On September 17, 2013, Gilmore submitted a pre-motion letter to the Court, in which letter she requested that the Court schedule a pre-motion conference. (See Dkt. No. 9.) The Court granted Gilmore’s request, (-See id.), and scheduled a conference for October 4, 2013, (see Dkt. No. 10). The Court also directed Gilmore-Smit to respond to Gilmore’s letter by September 27, 2013. (-See Dkt. No. 9.) Gilmore-Smit never responded, but she did appear by telephone at the October 4, 2013 confer
As scheduled, the Court held another conference on January 14, 2014. (See Dkt. (minute entry for Jan. 14, 2014).) However, Gilmore-Smit failed to appear, by telephone or otherwise. (See id.) At the conference, Gilmore requested permission to file a Motion for Summary Judgment, which request the Court granted. (See id.) On January 23, 2014, the Court issued a Motion Scheduling Order, in which Order it directed Gilmore to file her Motion by February 18, 2014, Gilmore-Smit to file her opposition papers by March 18, 2014, and Gilmore to file her Reply by April 1, 2014. (See Dkt. No. 11.) The Court also directed that a copy of the Order be mailed to Gilmore-Smit. (See id.)
Gilmore filed her Motion on February 14, 2014. (See Dkt. No. 15.) Along with her Motion, Gilmore submitted a sworn certificate stating that “a true and correct copy of the Notice of Motion for Summary Judgment was ... served via First Class, U.S. Mail” to Gilmore-Smit’s Brooksville, Florida address. (See Dkt. No. 20.) Yet, Gilmore-Smit did not respond in any way to Gilmore’s Motion before the March 18, 2014 deadline. Following Gilmore-Smit’s failure to respond, and out of an abundance of caution, the Court sent another copy of its January 23, 2014 Motion Scheduling Order to Gilmore-Smit’s Brooksville, Florida address on April 7, 2014. (See Dkt. (minute entry for April 7, 2014).) However, Gilmore-Smit still did not submit any opposition papers.
On May 23, 2014, Guardian filed a Motion through which it sought the Court’s permission to deposit the Policy’s proceeds into the Court’s Registry. (See Dkt. Nos. 27-31.) On August 7, 2014, the Court issued an Order directing Defendants to submit any objections to Guardian’s Motion within 10 days of the issuance of the Court’s Order. (See Dkt. No. 32.) Having received no such objections, the Court granted Guardian’s Motion on August 21, 2014, (see Dkt. No. 33), and Guardian deposited the Policy’s proceeds into the Court’s Registry on September 3, 2014, (see Unnumbered Dkt. Entry of September 8, 2014).
II. DISCUSSION
A. Standard of Review
Guardian and Gilmore assert that this Court has jurisdiction over this Action under the interpleader statute, 28 U.S.C. § 1335. (See Compl. ¶6 (“This Court has jurisdiction over this statutory interpleader action pursuant to the provisions of 28 U.S.C. § 1335(a)....”); Aff. of Joseph M. Saffioti, Esq. (“Saffioti Aff.”) ¶ 4 (Dkt. No. 16) (“This Court has jurisdiction over this statutory interpleader action pursuant to the provisions of 28 U.S.C. § 1335(a).... ”).) An “interpleader is designed to protect stakeholders from undue harassment in the face of multiple claims against the same fund, and to relieve the stakeholder from assessing which claim among many has merit.” Fid. Brokerage Servs., LLC v. Bank of China,
1. Step One of the Two-Step Interpleader Approach
“In order to determine whether an interpleader is appropriate under the first step, a court must, as an initial matter, ensure that the plaintiff has satisfied the jurisdictional requirements for bringing the action.” Mitchell,
(1) Two or more adverse claimants, of diverse citizenship as defined in [28 U.S.C. § 1332], are claiming ... to be entitled to ... any one or more of the benefits arising by virtue of any ... policy ...; and ... (2) the plaintiff has ... paid the amount of ... or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy.
28 U.S.C. § 1335(a). Although Section 1335 references Section 1332, the latter of which “require[s] ... complete diversity,” Purdue Pharma L.P. v. Kentucky,
Here, all of the prerequisites for the Court’s exercise of jurisdiction have been satisfied. The Policy’s initial face value was $100,000. (See Gilmore’s 56.1 Statement ¶ 2.) Additionally, because Gilmore is a citizen of the State of New York, (see Saffioti Aff. ¶ 2), and Gilmore-Smit is a citizen of Florida, (See id. ¶ 3), the Parties are minimally diverse. Finally, Guardian has deposited the Policy’s proceeds into the Court’s Registry. (See Unnumbered Dkt. Entry of ' September 8, 2014.)
“Assuming the jurisdictional requirements of [Section 1335] are satisfied, the áppropriateness of an interpleader action rests on whether the plaintiff has a real and reasonable fear of double liability or vexatious, conflicting claims against the single fund, regardless of the merits of the competing claims.” Mitchell,
Here, Guardian has alleged that it is “unable to determine to whom the amount due under the [P]olicy is payable” or “which of ... [Defendants is entitled to payment,” and that as a result, it “is, or may be, exposed to multiple liability.” (CompLIffl 21-22.) Given that Gilmore and Gilmore-Smit both claim that they are entitled to the Policy’s proceeds, Guardian’s fear of double liability appears to be real and reasonable. Thus, the Court determines that this interpleader Action is appropriate.
As stated previously, by way of relief, Guardian requests (1) that Defendants be restrained from instituting or maintaining any action against Guardian for the recovery of any part of the Policy’s proceeds; (2) that Defendants be required to inter-plead together concerning their claims to the proceeds; (3) that upon its payment of the Policy’s proceeds into the Court’s Registry, the Court discharge it from all further liability for such proceeds; and (4) for such other and further relief as the Court deems just and proper, together with expenses, costs, and disbursements of this Action, payable from the Policy’s proceeds. (See Compl. 4.)
As to the first and third forms of relief that Guardian requests, 28 U.S.C. § 2361 provides the following:
In any civil action of interpleader or in the nature of interpleader under [28 U.S.C. § 1335], a district court may ... enter [an] order restraining [all claimants] from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court---- Such district court ... may [also] discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment.
28 U.S.C. § 2361; see also Guardian Life Ins. Co. of Am. v. St. Ange, No. 11-CV-3468,
“Of importance, [Section] 2361 enables a party meeting the requirements of [Section] 1335 to obtain a restraining order without following the procedures set forth in [Rule 65 of the Federal Rules of Civil Procedure], which normally governs the issuance of injunctive relief.” Mitchell,
In regard to the third form of relief that Guardian requests, “[generally, once an interpleader plaintiff has satisfied the Section 1335 jurisdictional requirements of an interpleader claim, the court should readily grant discharge of the stakeholder, unless it finds that the stakeholder may be independently liable to a claimant.” Mitchell,
As to the fourth form of relief that Guardian requests, the Court notes that, as a general matter, “a district court has discretion to award reasonable attorneys’ fees and costs to a disinterested stakeholder in an action brought under the interpleader statute.” Hartford Life Ins. Co. v. Pottorff, No. 13-CV-77,
“This is particularly true in the case of insurance companies, where minor problems that arise in the payment of insurance policies must be expected and the expenses incurred are part of the ordinary course of business.” Mitchell,
Here, Guardian has not identified any unique expenses that it has incurred in connection with litigating this Action, nor any other special circumstances tending to suggest that the Court should depart from the established practice among district courts within the Second Circuit of declining to award attorneys’ fees and costs to similarly situated insurance companies. As such, the Court denies Guardian’s request for reimbursement from the Policy’s proceeds.
Having found that this Action is appropriate, and having addressed Guardian’s requested relief, the Court now proceeds to an adjudication of the claims among the remaining adverse parties.
2. Step Two of the Two-Step Interpleader Approach
a. Standard of Review
Before the Court is Gilmore’s Motion for Summary Judgment. Summary judgment shall be granted where the movant shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc.,
“In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences, against the movant.” Brod,
As noted above, Gilmore-Smit has not opposed Gilmore’s Motion for Summary Judgment. In Vermont Teddy Bear Co. v. 1-800 Beargram Co.,
This Court has made clear ... that where the non-moving party chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party’s submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial. If .the evidence submitted in support of the summary judgment motion does not meet the movant’s burden of production, then summary judgment must be denied even if no opposing evi-dentiary matter is presented. Moreover, in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party’s Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion.
Id. at 242, 244 (citations, internal quotation marks, and emphasis omitted).
b. Choice of Law
“In federal interpleader actions where jurisdiction is based on a diversity of citizenship, like the instant action, courts apply the [choice-of-law rules] of the forum state.” Ministers & Missionaries Benefit Bd. v. Estate of Clark Flesher, No. 11-CV-9495,
Although “New York courts will generally enforce a choice-of-law clause so long as the chosen law bears a reasonable relationship to the parties or the transaction,” see Ergowerx Int’l, LLC v. Maxell Corp. of Am.,
Here, the only two Parties to cite to any law at all, Guardian and Gilmore, have indicated their assent to the application of New York law by citing exclusively to New York statutes and cases. (See Compl. ¶ 19 (citing to a provision of New York insurance law); Gilmore Mem. at unnumbered 3-5 (citing only New York cases).) Additionally, by not citing to any law or filing any response to Gilmore’s Motion, Gilmore-Smit and Applebee-McPhillips have indicated their assent to the application of the law of the forum state. Cf. Lenard v. Design Studio,
c. Decedent’s Competence To Change the Policy’s Beneficiary
Gilmore’s primary argument as to why summary judgment should be entered in her favor as to the first fact in dispute is that “a party alleging lack of legal capacity
In contract cases, “New York presumes that a person is ‘competent at the time of the performance of the challenged action and the burden of proving incompetence rests with the party asserting incapacity.’ ” Liberty Life Assurance Co. of Bos. v. Bahan, No. 09-CV-M715,
In the district-court action underlying Travelers Insurance Co. v. Childs,
The Second Circuit upheld the district court’s ruling. Id. However, en route to doing so, it disagreed with the district court as to where the relevant burden lay:
It is well settled law in New York that the proponent of a testamentary disposition has the burden of proving the mental capacity of the testator. Therefore,we may not reverse the judgment unless we are satisfied that the claimants ... so plainly proved that the insured had the required capacity to change the beneficiary that it was clearly erroneous to hold otherwise.
Id. (citation omitted). In so holding, the court did not cite to any New York cases applying the law governing testamentary dispositions to life-insurance policies. Instead, it cited to a single case that the Appellate Division decided in 1946, which involved a will, not a life-insurance policy, and in which the court merely stated the “well-settled” rule described above—that “in a will contest the burden of proving testamentary capacity is upon the proponent.” Id. (citing In re Morrison’s Will,
The Court has been unable to locate a single case decided before Childs, or in the 55 years since, in which a court applied the probate standard, as opposed to the contract standard, to a life-insurance policy.
“Notwithstanding” that the cases described above are in tension with Childs, “the Second Circuit has not overruled [Childs], and thus it constitutes binding precedent that this Court must follow.” In re Procel,
“The [capacity] standard for making a will is less rigorous” than the competence standard for making a contract, as a will is “sometimes made by a person who is ill and facing death.” Rudolf Nureyev Dance Found. v. Noureeva-Francois,
“Where there is direct evidence that the decedent possessed the understanding to make a testamentary disposition, even medical opinion evidence assumes a relatively minor importance.” Id. (internal quotation marks omitted) (quoting In re Estate of Makitra,
Here, the affidavits that Gilmore submitted in support of her Motion for Summary Judgment are sufficient to create a presumption that Decedent had testamentary capacity when he signed the Form. Gilmore submitted three relevant affidavits. The first is from Mosner, “a Notary Public registered in the State of New Jersey” who is “employed as the Secretary to the Superintendent of the Newton School District,” where Decedent worked as a school custodian. (Mosner Aff. ¶¶ 1-2.) According to Mosner’s affidavit, on April 20, 2012, she was “asked by [her] superior ... to notarize a document for” Decedent at the Merriam Avenue School in New Jersey, and thereafter
Gilmore also addresses Decedent’s capacity to execute the Form in her own affidavit. In describing her husband’s liver cancer, Gilmore states that, throughout the course of Decedent’s illness, “the only time he was taking morphine for pain was during the last week of his life in January 2013”—more than eight months after he signed the Form. (Gilmore Aff. 2.) Additionally, Gilmore states that her “husband had full mental capacity during his illness until the winter of 2013-2014.” (Id.)
The third affidavit that Gilmore submitted is from Irene Lynn Labate Vanatta (“Vanatta”), who is Gilmore-Smit’s sister and Decedent’s aunt. (Vanatta Aff. ¶ 1.) Vanatta was “a New York State Licensed Registered Nurse from 1975 until 2004 when [she] retired,” which experience she claims “gave [her] great insight into the nature of [Decedent’s] illness.” (Id. ¶¶ 3, 5.) Vanatta “knew [Decedent] from his birth until the time of his death.” (Id.) She claims that she and Decedent “had a close relationship ... during his entire life.” (Id. ¶ 4.) Vanatta lived “in close proximity to [Decedent],” and “in particular spent many hours with him during his illness.” (Id. ¶¶2, 4.) Specifically, she “frequently accompanied [Decedent] to his appointments with his physicians in New York City,” and “was present during his examinations with his doctors and discussed his disease and treatments with [them].” (Id. ¶ 5.)
Regarding the ammonia on Decedent’s brain, Vanatta states that “[t]he condition was only temporary and short lived lasting less than several hours.” (Id. ¶ 6.) According to Vanatta, “[a]t no time from 2008 during his initial diagnoses with his disease until the fall of 2012 did [Decedent] loose [sic] his mental capacity or his ability to make decisions.” (Id.) Later in her affidavit, she reiterates that, “[d]uring the period of 2008 to his retirement in 2012 [Decedent] was working full time, was not on pain medication and had full mental capacity.” (Id. ¶ 9.)
To summarize, only two people besides Decedent appear to have been present when he signed the Form. The first was Gilmore, who is undoubtedly an interested party. The second was Mosner, a disinterested witness. See In re Estate of Maki-tra,
There is no evidence in the record that rebuts this presumption. The only submission that Gilmore-Smit has made in this Action is the letter she filed on June 24, 2013, in which she stated that she “think[s]” that, in the months leading up to Decedent’s death, Decedent “was on heavy doses of morphine due to ... ammonia on the brain,” and that as a result, “he was not of sound mind,” and “unknowingly signed something ... which changed the beneficiary or gave someone power of attorney to do so.” (June 24 Gilmore-Smit Letter.) As an initial matter, these un-sworn statements are not evidence on which the Court may rely in deciding Gilmore’s Motion for Summary Judgment. See Hicks v. Baines,
Because the evidence that Gilmore has submitted establishes a presumption of testamentary capacity, the burden of proof falls on Gilmore-Smit to rebut that presumption. See In re Estate of Scaccia,
As stated, it is undisputed that Decedent changed the Policy’s beneficiary from Gilmore-Smit to Gilmore in April 2012. (See Gilmore’s 56.1 Statement ¶ 5; Change of Beneficiary Form; June 24 Gilmore-Smit Letter.) None of the Parties has challenged Decedent’s right to make this change under New York law or per the Policy’s terms. Therefore, because Gilmore has submitted sufficient evidence to create a presumption of testamentary capacity, and because Gilmore-Smit has failed to come forward with any admissible evidence sufficient to raise an issue as to whether she would be able to rebut that presumption at trial, the Court grants Gilmore’s Summary Judgment Motion as to the first fact in dispute.
d. Gilmore’s Payment of the Applebee-McPhillips Funeral Bill
At this time, the Court is unable to find that there is no genuine issue of material fact as to the second fact in dispute, whether “the Applebee-MePhillips funeral bill was paid in full out of [Gilmore’s] personal funds.” (Gilmore’s 56.1 Statement ¶ 10.) As noted above, Gilmore has submitted what appears to be a May 13, 2013 funeral bill from Applebee-McPhillips, at the bottom of which Apple-bee-MePhillips appears to state, “Thank you, the funeral expenses for Robert are paid in full.” (See Funeral Bill.) However, “the principles governing admissibility of
The funeral bill could potentially be admissible under the hearsay exception for “records of a regularly conducted activity” codified by Rule 803(6) of the Federal Rules of Evidence, often referred to as the “business records exception,” see, e.g., United States v. Kaiser,
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with [Federal Rule of Evidence] 902(11) or (12) or with a statute permitting certification; and
(E)neither. the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Fed.R.Evid. 803(6).
But Gilmore has failed to satisfy the fourth condition for the admissibility of a business record under Rule 803(6), as she has not demonstrated compliance with the first three conditions through the testimony of the funeral bill’s custodian or another qualified witness, or through the type of certification that the Rule describes. See Djangmah v. Falcione, No. 08-CV-4027,
Additionally, although Gilmore asserts in her Rule 56.1 statement that “the Apple-bee-McPhillips funeral bill was paid in full out of her personal funds,” and that “Ap-plebee-McPhillips no longer has any rights to any portion of the insurance proceeds,” the Second Circuit has held that, when a motion for summary judgment is unopposed, “in determining whether the mov
Therefore, because Gilmore has not provided the Court with any admissible evidence proving that the Applebee-McPhil-lips funeral bill was paid in full out of her personal funds, she has failed to carry her burden of showing that no genuine dispute exists as to that fact, and the Court is unable to enter judgment in her favor on that issue. See Vt. Teddy Bear,
III. CONCLUSION
For the foregoing reasons, the Court orders that all claimants to the Policy’s proceeds are hereby restrained from instituting or prosecuting any proceeding in any state or United States court affecting such proceeds until further order of this Court, and discharges Guardian from further liability for such proceeds. Additionally, the Court grants Gilmore’s Motion in regard to her claim against Gilmore-Smit, finding that there is no genuine issue of material fact as to Decedent’s testamentary capacity to change the Policy’s beneficiary from Gilmore-Smit to Gilmore, but denies without prejudice to renewal at a later date Gilmore’s Motion in regard to her claim against Applebee-McPhillips, based on Gilmore’s failure to provide the Court with sufficient admissible evidence. However, given that the Assignment that Applebee-McPhillips filed with Guardian was for only $7,475 of the Policy’s proceeds, the Clerk of Court is respectfully requested to pay all but $7,475 of the money that Guardian has deposited in the Court’s Registry in connection with this Action to Gilmore. The Court will maintain the remaining $7,475 in its Registry until such time as the dispute over the funeral expenses is resolved. Given the inadmissible evidence that Gilmore submitted, as well as Applebee-McPhillips’ failure to appear in this Action, Gilmore may want to consider seeking Applebee-McPhillips’ voluntary withdrawal of its claim to $7,475 of the Policy’s proceeds, or a default judgment against Applebee-McPhillips for the same amount.
The Clerk of Court is respectfully requested to terminate the pending Motion. {See Dkt. Nos. 15, 20)
SO ORDERED.
Notes
. Given that Gilmore and Gilmore-Smit have both asserted claims to the Policy’s proceeds within the context of this Action, the second form of relief that Guardian requests appears to be moot. In any event, it is largely dupli-cative of the first.
. It is worth noting that Childs has been cited 10 times in published cases since it was decided, but never for its discussion of the burden of proof.
. The Court notes that, because the state-court decision that conflicts with Childs was not decided by the New York Court of Appeals, the situation here differs from that presented in cases like Prestige Builder & Management LLC v. Safeco Insurance Co. of America,
. Gilmore's listing of the years 2013-14 instead of 2012-13 appears to have been due to a typographical error, as she states elsewhere in her affirmation that Decedent died in January 2013. (See Gilmore Aff. 2.)
. In her affidavit, Gilmore states that Decedent retired in June 2012, approximately two months after he signed the Form. (Gilmore Aff. 1.)