AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK v. Elias Nicolakis, Defendant-Respondent. (1998)

Judgment, Supreme Court, New York County (Louise Gruner-Gans, J.), entered September 15, 1997, which awarded Elias Nicolakis the total amount of $111,249.66, and bringing up for review an order of the same court and Justice entered August 12, 1997, granting said defendant's motion for summary judgment and denying the cross motion of defendants Evangelia Kandros and Nikitas Nicolakis to amend their cross claim for imposition of a constructive trust, unanimously affirmed, with costs.

 The IAS court properly granted summary judgment awarding Elias Nicolakis, as owner and sole beneficiary, the proceeds of the policy issued by plaintiff insuring the life of the decedent, Elias' brother (see, A.F. Green & Co., Inc. v. William Penn Life Ins. Co. of New York, 220 A.D.2d 317, 633 N.Y.S.2d 5).   The court also properly refused to grant the children of the decedent, defendants Evangelia Kandros and Nikitas Nicolakis, permission to amend their cross claim for the imposition of a constructive trust on the policy proceeds.   The version of events told by Kandros in her affidavit in support of the cross motion was inconsistent with the pleading as to which amendment was sought even though the occurrences described in her affidavit had taken place prior to the time the pleading sought to be amended had been filed.   Moreover, contrary to the cross movants' contention, receipt of the proceeds by Elias Nicolakis did not constitute unjust enrichment since he had paid actual consideration for the policy by making the premium payments, either directly or indirectly, to plaintiff for approximately four years (cf., Markwica v. Davis, 64 N.Y.2d 38, 41, 484 N.Y.S.2d 522, 473 N.E.2d 750).

MEMORANDUM DECISION.