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Case 1:12-cv-06308-DLC Document 17 Filed 07/10/13 Page 1 of 14







12 Civ. 6308 (DLC)



OPINION & ORDER





-v-

Defendant.

Plaintiff,

1199 SEIU HEALTH CARE EMPLOYEES
PENSION FUND,

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
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MARY E. IGOE,
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APPEARANCES:
For the Plaintiff:
Barry D. Haberman
254 South Main Street #404
New City, NY 10956

For the Defendant:

Suzanne Metzger
1199SEIU Benefit and Pension Funds
330 West 42nd Street, 31st Floor
New York, NY 10036

DENISE COTE, District Judge:

Plaintiff Mary E. Igoe (“plaintiff”) filed this action
against her late mother’s pension fund, defendant 1199 SEIU
Health Care Pension Fund (the “Fund”), asserting that the Fund
violated the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1001, et seq. The Fund has moved for
summary judgment. For the reasons that follow, the motion is
granted.

Case 1:12-cv-06308-DLC Document 17 Filed 07/10/13 Page 2 of 14






BACKGROUND

The following facts are undisputed. In 1957, at age

sixteen, plaintiff’s mother, Mary Igoe (“Mary”), married John P.
Igoe (“John”). Three years later, in 1960, John left Mary and
their two children, the plaintiff and John Igoe, Jr., before
taking up with another woman and fathering at least one other
child with her. Although Mary never spoke to John again, they
never officially divorced.

From 1979 until 1996, Mary worked at the Montefiore Medical

Center. Through her sixteen and a half years of “Credited
Service,” she became eligible for the 1199 SEIU Health Care
Employees Pension (the “Plan”) from the Fund, totaling $986.00
per month. The Plan provides, in relevant part, that Mary’s
pension is subject to a “Joint and One-Half (50%) Survivor
Option,” under which “[a]n actuarially-reduced pension shall be
paid to the Pensioner . . . and continued each month for life
with the provision that after [her] death one-half of such
reduced pension shall be continued to be paid monthly to [her]
joint pensioner for life.” The Plan provides two means by which
a participant may elect a beneficiary other than her spouse:

(a) The spouse must consent in writing to the
election; the spouse’s consent must acknowledge the
effect of the election; and the spouse’s signature
must be witnessed by a notary public; or




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(b) the Participant shall demonstrate to the
satisfaction of the Retirement Committee, in
accordance with such evidence as the Retirement
Committee in its sole discretion shall require, that
the spouse cannot be located.

Mary first applied for her pension in 2005. During the
processing of her 2005 application, the Fund determined that
Mary was married and that her spouse was therefore entitled to a
50% Joint and Survivor benefit. Mary then submitted a letter
indicating that she had not “seen or heard from John Igoe for
over 40 years. We have been apart for all this time. He has
not been involved in my life at all.”

In October 2005, the Fund sent John a letter. The letter
informed him that his wife had applied for a pension and that,
unless he agreed to waive his benefits, he would be the named
beneficiary. The letter further informed him that if he wished
to waive his entitlement to benefits, he should fill out an
attached “Spousal Waiver Agreement” and have it notarized.
Instead of doing this, John signed the bottom of the letter,
indicating that he did not waive his rights to Mary’s benefits.
Mary then put her application for benefits on hold.

In August 2010, Mary renewed her application for her

pension. In filling out her application, Mary listed John as
her spouse, but then named her daughter, the plaintiff, as her
beneficiary under the Joint & One Half Survivor Option. Mary
attached to the application an “Affidavit for Unlocatable



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Spouse” stating that she had not been able to reach her husband
at his last known address. Also attached were receipts showing
that mail to John Igoe had been returned unopened.1


According to the Fund, it again sent a letter to John and

again was able to reach him. The minutes from plaintiff’s later
appeal before the Retirement Committee state that John had
returned the Fund’s letter and attached to it his signed 2005
election letter, indicating that he still declined to waive his
right to Mary’s benefits. Neither the Fund’s 2010 letter to
John nor his response, however, is in the record at this point.

In May 2011, the Fund began dispersing Mary’s pension,
retroactive to August 2010. On January 28, 2011, Mary died
intestate. After her mother’s death, on August 19, 2011, the
plaintiff petitioned the Surrogate’s Court of the State of New
York in Rockland County to become the Administrator of her late
mother’s estate. In filling out a form in connection with this
application, plaintiff noted that Mary was survived by her
husband, John.2
November 22, 2011, John was represented by an attorney, who

1 It is notable that the address at which Mary attempted to reach
her husband in 2010 was not the same address at which the Fund
succeeded in reaching him in 2005, which was the same address at
which he was later reached in 2011.
2 Plaintiff also listed John’s address as 801 Neill Ave. in the
Bronx, the same address at which the Fund reached him in 2005,
but not the address at which Mary had attempted to reach him in
2010.

At a proceeding held in Surrogate’s Court on



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indicated that John would not object to plaintiff being named
administrator of Mary’s estate and recognized that he was giving
up his entitlement to a sum of money from the estate.

On February 14, 2012, the Surrogate’s Court issued a Decree

finding that John had abandoned Mary and that he was therefore
disqualified as a surviving spouse under New York State law.
John died soon thereafter, in the summer of 2012.

Meanwhile, on August 3, 2011, plaintiff, acting through

counsel, sent a letter to the Fund appealing its determination
that John was Mary’s beneficiary, and noting that Mary had named
her daughter as her beneficiary on her 2010 application. This
appeal came before the Fund’s Retirement Committee, which held a
meeting to discuss it on September 19, 2011. At the meeting and
in its written determination, the Retirement Committee noted
plaintiff’s argument that John had abandoned Mary, but found
that the Plan terms do not provide abandonment as a basis to
deny a spouse a Joint and Survivor right, and that John had
neither waived his right to Mary’s benefits nor been shown to be
lost. Plaintiff received notice of the denial of her appeal by
letter dated November 22, 2011.

The plaintiff filed the instant action on August 17, 2012,
alleging that the Fund violated ERISA and breached its fiduciary
duty by failing to make payments to her under the Plan and
seeking declaratory, injunctive, and monetary relief under 29



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U.S.C. § 1132(a)(1)(B). On February 15, 2013, the Fund filed a
motion for summary judgment, which was fully submitted on March
22, 2013.


DISCUSSION

Summary judgment may not be granted unless the submissions

of the parties taken together “show 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). The
moving party bears the burden of demonstrating the absence of a
dispute as to a material fact, and in making this determination
the court must view all facts in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). When the moving party has asserted facts showing that
the non-movant’s claims cannot be sustained, the opposing party
must “set forth specific facts showing that there is a genuine
issue for trial,” and cannot rest on mere “allegations or
denial” of the movant's pleadings. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010). Nor can a non-movant
“rely on mere speculation or conjecture as to the true nature of
the facts to overcome a motion for summary judgment.” Baines,
593 F.3d at 166.



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ERISA provides a private right of action on behalf of a

participant, beneficiary, or fiduciary of a benefit plan

[t]o enjoin any act or practice which violates . . . the
terms of the plan, or to obtain other appropriate
equitable relief (i) to redress such violations or (ii)
to enforce any provisions of this subchapter or the terms
of the plan.

In an appeal of a plan’s denial of benefits under


29 U.S.C. § 1132(a)(1)(B); see also Chapman v. ChoiceCare Long
Island Term Disability Plan, 288 F.3d 506, 509–10 (2d Cir.
2002); Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993).

§ 1132(a)(1)(B), where the plan “gives its administrator broad
discretion to construe the terms of the plan and to determine
whether a claimant is entitled to payment of benefits, a court
may reverse the administrator’s decision only if it is arbitrary
and capricious.” Zervos v. Verizon N.Y., Inc., 277 F.3d 635,
650 (2d Cir. 2002). The parties do not dispute that the
arbitrary and capricious standard applies here, as § 12.9 of the
Plan grants the Trustees the “sole and absolute discretion to
administer, apply, and interpret the plan.”

A decision is arbitrary and capricious if it is
without reason, unsupported by substantial evidence or
erroneous as a matter of law. Substantial evidence is
defined as such evidence that a reasonable mind might
accept as adequate to support the conclusion reached
by the administrator and requires more than a
scintilla but less than a preponderance.


Id. (citation omitted). When applying the arbitrary and
capricious standard, a court “is not free to substitute its own



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judgment for that of the plan administrator as if it were
considering the issue of eligibility anew.” Id. (citation
omitted).

The Plan did not act arbitrarily and capriciously in

affirming plaintiff’s denial of benefits. The relevant portions
of the Plan are modeled on provisions in ERISA itself. ERISA
provides that a participant may not waive the surviving spouse’s
annuity unless:

(i) the spouse of the participant consents in writing
to such election, (ii) such election designates a
beneficiary (or a form of benefits) which may not be
changed without spousal consent (or the consent of the
spouse expressly permits designations by the
participant without any requirement of further consent
by the spouse), and (iii) the spouse's consent
acknowledges the effect of such election and is
witnessed by a plan representative or a notary public.

29 U.S.C. § 1055(c)(2)(A). Notwithstanding these requirements,
a participant may also select a beneficiary other than her
spouse if “it is established to the satisfaction of a plan
representative that the consent required . . . may not be
obtained . . . because the spouse cannot be located.” 29 U.S.C.
§ 1055(c)(2)(B). The Second Circuit has found these
requirements to be “unambiguous.” Hurwitz v. Sher, 982 F.2d 778,
781 (2d Cir. 1992).

Retirement Committee determined that Mary was married at the
time of her death, that John had not waived his entitlement to

Applying these terms to the plaintiff’s appeal, the



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Plaintiff argues that the Fund’s conclusion that John was



benefits, and that he was not lost. The Retirement Committee
therefore determined that although Mary and John had not been in
contact for forty years, Mary had not met the requirements of
the Plan and ERISA for naming her daughter as her beneficiary.
Because substantial evidence supports the Retirement Committee’s
factual conclusions, there is no genuine issue as to whether its
decision was arbitrary and capricious, and the Fund is entitled
to summary judgment.

not “lost” was not supported by substantial evidence in the
record. In particular, plaintiff stresses that neither the
Fund’s 2010 letter to John nor his response are in the
administrative record. While both the Retirement Committee
agenda and the Committee’s written findings make reference to
this correspondence, it appears that it was never made part of
the documentary record. In light of Mary’s 2010 “Affidavit for
Unlocatable Spouse” and returned mail addressed to John,
plaintiff argues that the record does not contain substantial
evidence to support the conclusion that John was not in fact
lost.

to reach John in 2005, or that plaintiff herself was able to
reach him in 2011, at the same address, in connection with the

Plaintiff does not, however, dispute that the Fund was able



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In fact, the record shows



proceedings in Surrogate’s Court.3
that Mary’s returned letter to John was sent to a different
address than the address at which he was reached in both 2005
and 2011.

Furthermore, plaintiff’s counsel’s letter appealing the
Fund’s initial benefits determination indicated that the Fund
had informed Mary on July 1, 2010, that they had located John
and that he had declined to waive his entitlement to her
benefits. The Retirement Committee’s minutes from its hearing
on the appeal also indicate that John responded to the Fund’s
2010 correspondence, and do not reflect that plaintiff argued
that John could not actually be located. Thus, while the 2010
correspondence itself is not in the record at this point, there
is ample reason to conclude that this correspondence was before
the Fund’s Retirement Committee at the time it made its
decision. Such evidence was more than sufficient to find that
John was not lost.

participant the burden of demonstrating that a spouse cannot be

It is also notable that the terms of the Plan place on a


3 The Surrogate’s Court proceedings occurred after the Fund’s
denial of plaintiff’s appeal and were therefore not part of the
administrative record. Nevertheless, plaintiff suggests that
the Court consider this material in reviewing the Fund’s
decision, and defendant does not appear to object. The Court
will therefore exercise its discretion to consider this
evidence. See Krauss v. Oxford Health Plans, Inc., 517 F.3d
614, 631 (2d Cir. 2008).



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located. In the words of the Plan, “the Participant shall
demonstrate to the satisfaction of the Retirement Committee, in
accordance with such evidence as the Retirement Committee in its
sole discretion shall require, that the spouse cannot be
located.” It cannot be said that the Plan acted arbitrarily and
capriciously in determining that Mary had not met this burden,
in light of the facts showing that John could in fact be
located, as had been done by both the Plan and the plaintiff.
Plaintiff next argues that the finding of abandonment by

the Surrogate’s Court should have the effect of destroying
John’s entitlement Mary’s benefits under ERISA. ERISA section
1055(c)(2)(B) provides that a participant’s decision to waive
the surviving spousal annuity shall not take effect unless,
inter alia, spousal consent may not be obtained “because there
is no spouse, because the spouse cannot be located, or because
of such other circumstances as the Secretary of the Treasury may
by regulations prescribe.” 29 U.S.C. § 1055(c)(2)(B). Federal
regulations in turn provide that, in addition to the situations
listed in Section 1055(c)(2)(B), spousal consent is not required
to waive the spousal annuity if “the participant is legally
separated or the participant has been abandoned (within the
meaning of local law) and the participant has a court order to
such effect.” 26 C.F.R. § 1.401(a)-20, Q & A 27. Nevertheless,
this language clearly requires that “the participant,” i.e.,



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Mary, have a court order of abandonment, and it is undisputed
that the order of abandonment was not obtained until after
Mary’s death.

It is, moreover, an open legal question in this Circuit
whether ERISA Section 1055(c)(2)(B) necessarily requires that
this language be imposed on ERISA plans, regardless of whether
it is compatible with the terms of a plan. In Board of Trustees
v. Royce, 238 F.3d 177 (2d Cir. 2001), the court confronted an
argument that Section 1055(c)(2)(B) allowed a participant to
waive the surviving spouse annuity by showing that there had
been a legal separation, one of the grounds listed in 26 C.F.R.
§ 1.401(a)-20. The court observed that while it had previously
interpreted certain provisions in Section 1055 as “mandatory,
not optional,” and had therefore read them into plans that did
not contain them, it was unlikely that the exception for legal
separation or abandonment was entitled to the same treatment.
Royce, 238 F.3d at 180 (quoting Lefkowitz v. Arcadia Trading Co.
Ltd. Ben. Pension Plan, 996 F.2d 600, 603-04 (2d Cir. 1993)).
Previous cases, the court noted, had relied on Congress’s desire
to protect the spouses of beneficiaries, and imposing these
exceptions would “disadvantage [spouses] by forcing plans to
recognize additional exceptions to the consent requirement.”
Id. Royce thus suggests, without holding, that the exception
for abandonment is not mandatory. At any rate, this issue need



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not be resolved here, as the regulation at issue only waives the
requirement of spousal consent if “the participant has a court
order [of abandonment].” Plaintiff’s acquisition of a
posthumous finding of abandonment is therefore not legally
sufficient to waive ERISA’s default surviving spouse annuity.

Plaintiff also argues that the finding of abandonment

renders John an “unworthy heir” under state law and therefore
not entitled to benefits under Mary Igoe’s pension. It is well
settled that ERISA preempts state law. Boggs v. Boggs, 520 U.S.
833, 841 (1997). Plaintiff cites one non-binding case holding
that a spouse who murdered her husband was not entitled to his
retirement benefits, because “Congress did not intend ERISA to
preempt state laws which prohibit murderers from reaping
financial benefits as a result of their crimes.” New Orleans
Elec. Pension Fund v. Newman, 784 F. Supp. 1233, 1236 (E.D. La.
1992). The instant case obviously implicates no such state law,
and plaintiff has not cited any decision holding that the
requirements of ERISA are trumped by a state finding of
abandonment. Indeed, any state law that “conflicts with the
provisions of ERISA or operates to frustrate its objects” is
preempted. Boggs, 520 U.S. at 841; see also Egelhoff v.
Egelhoff ex rel. Breiner, 532 U.S. 141, 147-50 (2001) (ERISA
preempts state law that automatically revokes designation of
spouse as beneficiary in event of divorce).



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CONCLUSION


The Fund’s February 15 motion for summary judgment is
granted. The Clerk of Court shall enter Judgment for the
defendant and close the case.

SO ORDERED:

Dated:








__________________________________
DENISE COTE
United States District Judge

July 10, 2013
New York, New York





















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