Laurence L. Leff, Ph.D., etc., et al., Plaintiffs-Appellants, v. TIAA CREF (2011)

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Order, Supreme Court, New York County (Judith J. Gische, J.), entered November 24, 2009, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing the cause of action for a declaration that it must pay, transfer or roll over the proceeds of the decedent's personal annuity contract into an individual retirement account in the individual plaintiff's name, unanimously modified, on the law, to deny the motion and to declare that defendant is not obligated to pay, transfer or roll over the proceeds of the decedent's personal annuity contract into an IRA in plaintiff's name, and otherwise affirmed, without costs.

to rely on the alleged promises of defendant's employees to roll over the death benefit into an IRA account, since this promise clearly was in violation of the annuity contract, a copy of which plaintiff possessed at the time he alleges he relied on defendant's promises.   Thus the claim for promissory estoppel fails (see New York City Health & Hosps.   Corp. v St. Barnabas Hosp., 10 AD3d 489, 490 [2004] ).   The detrimental reliance claim fails for the same reason (see Rosenberg v. Home Box Off., Inc., 33 AD3d 550, 550 [2006], lv denied 8 NY3d 804 [2007] ).

Plaintiff's argument based on the Electronic Records and Signatures in Global and National Commerce Act (see 15 USC 7001) is unavailing, since, even assuming that his conversations with defendant's employees formed a contract, that contract could not be used to alter the terms of the annuity contract between defendant and decedent (see Fiske, 95 A.D.2d at 931).

Plaintiff's claim that he and defendant entered into a contract requiring defendant to roll over the death benefit into an IRA is without merit.   The record is devoid of the manifestation of mutual assent required to create a contract (see Matter of Express Indus.   & Term. Corp. v New York State Dept. of Transp., 93 N.Y.2d 584, 589 [1999] ).   Defendant never intended that plaintiff interpret its provision of customer service as an offer to enter into a contract, and, at the time of the alleged promise, neither plaintiff nor defendant's employees were certain that the death benefit could legally be rolled over.   Defendant investigated the matter in an effort to help plaintiff, and ultimately notified him that any action other than a lump sum payment to the estate was unambiguously prohibited by the annuity contract.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK