OPINION ORDER

Hon. HAROLD BAER, JR., United States District Judge.

The Equitable Life Assurance Society ("Equitable"), the plan administrator of the Equitable retirement plan for employees and managers ("plan"), the board of trustees of the plan, and the plan itself (collectively, "defendants") move for summary judgment under Fed.R.Civ.P. 56 dismissing those causes of action of Mary Hart's ("plaintiff's") complaint that have not been stayed pursuant to my September 12, 2002 order ("order"). Specifically, plaintiff brought this action under ERISA, Section 502(a)(3), as amended, 29 U.S.C.A. Sections 1001 et seq., for the recovery of benefits allegedly due to her under the terms of her employee benefit plan. Oral argument on defendants' motion to dismiss or, in the alternative, to stay plaintiff's action, which became fully briefed on August 12, 2002, was heard on September 4, 2002. Because I found that plaintiff's action before me significantly overlapped with a class action against defendants that is currently before Judge Hellerstein, Hirt v. The Equitable, 01 Civ. 7920, I stayed all causes of action that did not apply to plaintiff's individual misrepresentation claims. (September 12, 2002 order, ¶ 5). For the reasons detailed more fully below, defendants' motion is granted with respect to the causes of action before me and those claims are dismissed. The balance of plaintiff's complaint applies exclusively to the class action presently before Judge Hellerstein — i.e., defendants' rescission of a grandfathered benefit — and those claims will continue before Judge Hellerstein but not before me.

BACKGROUND

Defendants provide life insurance, annuities, and other financial products to millions of customers. In addition to offering a number of other benefit plans, defendants maintain a pension plan ("plan") for its own employees. Under the plan, the officers committee on benefit plans ("committee") is authorized to interpret and administer the plan. (Rivera Aff. Ex. 1).

Plaintiff was employed by defendants from on or about August 7, 1961 through May 10, 1963. (Hart Dep. 6-7). On May 10, 1963, plaintiff left defendants' employment for personal reasons. On or about November 8, 1976, more than thirteen years later, plaintiff was rehired by defendants to work in its Melville facility. (Hart Dep. 8-11).

In early 1998, defendants began to downsize and consequently informed plaintiff on January 25, 1998 that her position was being abolished, effective February 25, 1998. (Hart Dep. 40). On or about January 26, 1998, defendants provided plaintiff with a severance benefit plan ("severance plan") summary plan description ("SPD"), which explained the severance benefits that she was being offered under the plan. (Hart. Dep. 42-46). Under the terms of the severance plan, defendants offered plaintiff salary and benefits through November 18, 1998. (Hart Dep. 42-46; Def. Ex. H). Defendants distribute to all plan participants throughout their employment an SPD that provides information about the plan and the benefits provided. (Rivera Aff. ¶ 4). Beginning in the early 1990s, defendants implemented a computerized system, called Equitable's Personnel Information Center ("EPIC"), which allowed employees to request these benefit statements through a telephone voice response unit. (Hart Dep. 27-28). Throughout this period, EPIC produced these benefit statements based on information contained in defendants' payroll database, otherwise known as Tessaract. (Lee Dep. 119). EPIC statements are generated by the computer and mailed to plan participants; however, the data contained in those statements are not first reviewed by a benefits department employee and, as defendants point out, every estimate is clearly labeled with cautionary language that the final benefit amount may differ from the estimate. (Ross Aff. Exs. E-1, F-1, G-1). For instance, the following language appears at the top of a statement in shaded text and in regular-sized (i.e., 12 point) print that was prepared for plaintiff in November 1995: "[t]he values in this retirement illustration should not be viewed as guaranteed, but rather as estimates of your future benefits." (Ross Aff. Ex. E-1).

Plaintiff testified at her deposition that she had been receiving these statements providing estimates of her retirement benefits at least since 1993 and that she had in fact personally reviewed a statement that was received in 1993. (Hart Dep. 29). Following the implementation of EPIC, plaintiff requested and received three statements containing her projected retirement benefits, in 1995, 1996, and 1997. The 1995 statement indicated a monthly benefit of $1,106.00; the 1996 statement an amount of $1,163.00; and the 1997 statement an amount of $1,289.00. (Defs. Exs. E-1, F-1, G-1). Each of the statements that plaintiff received contained the cautionary language in shaded text quoted supra, as well as additional language stating that "[i]f there is any discrepancy between Plan Documents and the information presented here, the terms of the Plan Documents apply," and "[t]he Equitable reserves the right to correct any errors in this statement." (Defs. Exs. E-1, F-1, G-1).

After plaintiff's termination became effective on February 25, 1998, she made two separate requests for retirement benefit estimates, in March 1998 and September 1998, respectively. (Hart Dep. 76-89). Both times, Equitable's senior benefits consultant, Thomas Lee ("Lee"), provided her with an estimate of her benefits under the plan along with a standard letter stating that the estimates were subject to change and were subject to a "final audit at the time income commences." (Ross Aff. Exs. M-O). The first statement, which plaintiff received on March 24, 1998, indicated a monthly benefit in the amount of $1,536.66. (Ross Aff. Ex. M). The second statement, which plaintiff received on October 8, 1998, indicated the same monthly benefit amount. (Ross Aff. Ex. O). Plaintiff admits that she read the second letter when she received it and that she understood "[b]asically that this was an estimate" and that she did not question defendants with respect to this cautionary language. (Hart Dep. 97).

The present controversy arose when plaintiff submitted retirement election forms to Equitable's benefits department on or about November 2, 1998. After receiving these forms, Lee retrieved plaintiff's benefit department file, which contained more complete information than Tessaract on plaintiff's personnel history with defendants. (Lee Dep. 95-98). Upon receipt of the file, Lee became aware that Tessaract had mistakenly credited plaintiff with ten years of service that she had not earned because the payroll system reflected that she left defendants' employment in 1973 rather than on May 10, 1963. (Lee Dep.). The corrected statements reflected a monthly benefit in the amount of $553.01 and a lump sum payment of $27,664.95. (Ross Aff. Ex. T). Here lies the concern at the heart of the matter. On November 9, 1998, Lee telephoned plaintiff and informed her of the error and of the adjusted monthly benefit amount. (Lee Dep. 105-06; Hart Dep. 112-13). Lee testified at his deposition that the error with respect to plaintiff's service performed went back at least as far as 1987, when defendants began to use Tessaract, and that defendants used the information from Tessaract — rather than from plaintiff's actual file, which would have revealed the error — when preparing the statements in March and October 1998. (Lee Dep. 46, 54, 99-101). As he stated:

Q: Previously, Mr. Lee, you testified that the Tessaract system went into effect in approximately 1987?

Q: Would it be fair to say, then, that the error relating to Mary Hart's service was in that system since approximately 1987?

Q: When you say "Prior to," it would be —

A: I don't know where the error actually started. I don't know if it was in the keying of the Tessaract records or earlier. I don't know.

A: Yes. (Lee Dep. 54).

Following her retirement, plaintiff appealed the decision to award her retirement benefits based on actual years of service rather than on the benefit estimates that appeared on her periodic statements. On December 6, 1998, Robert Keane, then vice president of the benefits department, informed plaintiff that defendants were unable to honor her request, stating that "[i]n all cases, as explained in the various benefits statements and estimates you received, we are legally required to adjust benefits if an error is discovered upon audit of the calculation." (Ross. Aff. Defs. Ex. W). Although plaintiff retained counsel on two occasions to dispute defendants' decision, in early 1999 and mid-2000, respectively, both times defendants informed plaintiff that they were standing by their position that plaintiff's benefits would be based upon the plan — that is, her actual period of service — rather than upon the incorrect benefit statements. (Ross Aff. Defs. Exs. Z, EE).

Still dissatisfied with this result, plaintiff commenced the present lawsuit on the grounds that defendants were obliged to credit her for the full amount indicated on the benefit statements that she received, regardless of defendants' erroneous calculation. As noted supra, following oral argument on defendants' motion to dismiss, or, in the alternative, to stay plaintiff's action, I stayed all causes of action that did not apply to plaintiff's individual misrepresentation claims. (September 12, 2002 order, ¶ 5). However, the parties disagree with respect to which causes of action were not stayed and which are therefore included in defendants' motion for summary judgment. Plaintiff maintains that this Court did not stay the sixth, seventh, eighth, tenth, and eleventh causes of actions because they all relate to her individual misrepresentation claims. Defendants, by contrast, contend that I stayed the tenth and eleventh causes of action. I agree with plaintiff that the tenth and eleventh causes of action were not stayed by my order as they relate specifically to plaintiff's individual misrepresentations claims (estoppel and breach of fiduciary duty). Accordingly, I find that defendants' motion for summary judgment applies to every claim that has not been stayed by my order, namely, plaintiff's sixth, seventh, eighth, tenth, and eleventh causes of action. Plaintiff's eighth cause of action mirrors her seventh cause of action verbatim and was therefore, I presume, an oversight. In addition, plaintiff's sixth cause of action appears to parrot her tenth cause of action for equitable estoppel.

DISCUSSION

1. Standard Under Rule 56

In a motion for summary judgment, the burden is on the moving party to establish that no genuine issues of material fact are in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248, cert. denied, 506 U.S. 965 (1992)). The court resolves all ambiguities and draws all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide. Aldrich, 963 F.2d at 523.

2. Failure to Inform Plaintiff of Her Right to Contest her Benefits (Seventh and Eighth Causes of Action)

Plaintiff's seventh and eighth causes of action state that "[d]efendants [ sic] failure to notify [her] of her right to administratively contest the recession of her benefit was arbitrary and capricious, a violation of Plan procedures and results in the original award of benefits remaining in effect until such time as there is compliance with Plan procedures." (Compl. ¶¶ 74, 77). I agree with defendants that this claim is wholly without merit.

First, as defendants point out, the SPDs provided to all plan participants explicitly inform participants of their rights to administratively contest benefit awards. (Rivera Aff. Exs. 2-3). Second, and more important, Hart did indeed contest her benefit award on two separate occasions with the assistance of counsel, in early-1999 and mid-2000. Accordingly, no genuine issue of material fact exists with respect to whether defendants' failed to inform plaintiff of her right to contest the recession of her benefit.

3. Equitable Estoppel Claim (Sixth and Tenth Causes of Action)

Plaintiff first argues that she has satisfied the elements of equitable estoppel under the law of this Circuit. I disagree.

To survive summary judgment on an equitable estoppel claim in this Circuit, a plaintiff must satisfy the following three elements: (1) a material misrepresentation, (2) reliance thereon, and (3) damage resulting therefrom. Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993) (quotations and citations omitted). With respect to ERISA claims specifically, a plaintiff must also adduce facts "sufficient to [satisfy an] `extraordinary circumstances' requirement as well." Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76, 85 (2d Cir. 2001) (quoting Devlin v. Transp. Comms. Int'l Union, 173 F.3d 94, 102 (2d Cir. 1999) (other quotations and citations omitted)). Although the Second Circuit in the most recent Devlin case made it clear that "extraordinary circumstances" are not limited to circumstances of intentional inducement, it did not define the scope of "extraordinary circumstances" because it found that the plaintiffs in that case successfully demonstrated intentional inducement — and, by extension, extraordinary circumstances. See id. at 86. Specifically, in vacating the lower court's judgment for defendant on plaintiffs' promissory estoppel claim, the Second Circuit averred that genuine issues of material fact existed as to whether or not extraordinary circumstances existed for plaintiffs to prevail on this claim. In that case, plaintiffs had received a summary plan description with respect to a defendant-company's life insurance benefits plan that contained no qualification or condition on the benefits, nor any indication that the company would reduce or eliminate them at a later date. See id. at 80. However, because of financial difficulties that beset the company years later, defendant voted to adopt new benefit provisions for both current employees and retirees — provisions that came as a surprise and for which participants were unprepared and resulted in a reduction in life insurance coverage to a flat rate. The Second Circuit disagreed with the district court with respect to the extraordinary circumstances prong, stating that "a trier of fact could reasonably conclude that [defendant] intentionally promised lifetime life insurance benefits to lure (and retain) employees away from other firms paying higher salaries and then denied those benefits after the employees were of an age where they could neither make up the salary difference or [ sic] obtain alternative benefits at a reasonable cost." Id. at 86-87.

Here, plaintiff maintains that she has not only adequately pled the three elements of equitable estoppel, but has also demonstrated extraordinary circumstances. By contrast, defendants contend that plaintiff has failed to demonstrate (1) that the benefit estimates constituted "material misrepresentations," and (2) that the circumstances surrounding this case rise to the level of "extraordinary." With respect to plaintiff's reliance on material misrepresentations, defendants cite to the Second Circuit's decision in Perreca v. Gluck, which held, in part, that a plaintiff's promissory estoppel claim could not survive summary judgment on the ground that a "prominent disclaimer" appearing on the benefits statement received by plaintiff clearly alerted him to the fact that actual benefits were subject to verification before any payments would be authorized. 295 F.3d 215, 225-26 (2d Cir. 2002). In addition, defendants also cite to Moore v. Metro. Life Ins. Co., 856 F.2d 488, 492-93 (2d Cir. 1988), for the proposition that a written plan under ERISA cannot be modified, amended, or superseded by informal communications. See also Miller v. Coastal Corp., 978 F.2d 622, 624-25 (7th Cir. 1992) (finding that written statements, sent to plaintiff by defendant annually over a ten-year period and which summarized his benefits under the pension plan at issue, constituted informal communications that could not modify the plan).

As with the statements at issue in Perreca, the benefits statements that plaintiff received in 1995, 1996, and 1997 contained explicit cautionary language: "the values in this retirement illustration should not be viewed as guaranteed, but rather as estimates of your future benefits." (Defs. Exs. E-1, F-1, G-1). In addition, the statements also contained the following language: "If there is any discrepancy between Plan Documents and the information presented here, the terms of the Plan Documents apply," and "The Equitable reserves the right to correct any errors in this statement." The Second Circuit has made clear in Perreca that such explicit disclaimers defeat a claim for estoppel.

However, even if I were to find that plaintiff has satisfied all three elements of equitable estoppel, which I do not, the "extraordinary circumstances" prong, a prerequisite for all claims of equitable estoppel under ERISA, must fail. Indeed, the facts of this case are clearly distinguishable from those in Devlin. In that case, the court found that defendant had intentionally induced plaintiffs with the promise or "lure" of lifetime insurance benefits. Here, by contrast, defendants mistakenly calculated the monthly amount of plaintiff's benefits based on misinformation — namely, the number of years she actually worked. In other words, although plaintiff must now suffer the consequences of an unfortunate mistake, she has not successfully demonstrated that the circumstances of her case were "extraordinary" so as to survive defendants' motion for summary judgment.

4. Breach of Fiduciary Duty Claim (Eleventh Cause of Action)

ERISA requires that a plan fiduciary "discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries." 29 U.S.C. § 1104 (a). The Second Circuit has expressly held that a plan breaches its fiduciary duty when it makes "affirmative material representations . . . about changes to an employee pension benefits plan." Mullins v. Pfizer, Inc., 23 F.3d 663, 669 (2d Cir. 1994) (internal quotation marks omitted). In that case, the court averred that the question with respect to whether the defendant had breached its fiduciary duty was limited to "whether [defendant] had a duty, as a plan fiduciary, not to affirmatively mislead participants." Id. at 668 (emphasis added); see also Becker v. Eastman Kodak Co., 120 F.3d 5, 10 (2d Cir. 1997) (holding that defendant breached its fiduciary duty under ERISA by distributing an ambiguous SPD and by providing materially misleading oral information to plaintiff).

Here, all of the written statements with projected monthly benefits that plaintiff received contained cautionary language that the amounts indicated were estimates subject to a final audit. I find that the cautionary language contained in these statements certainly does not rise to the level of "affirmative misrepresentations" that would constitute a breach of defendants' fiduciary duty. Indeed, defendants anything but affirmatively misrepresented the monthly benefits by candidly stating that they were estimates subject to change if upon final review. Accordingly, defendants' motion for summary judgment with respect to the eleventh cause of action is granted.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment with respect to plaintiff's sixth, seventh, eighth, tenth, and eleventh causes of action is granted. Accordingly, the complaint is dismissed in its entirety and the clerk of the court is instructed to remove this matter and all open motions from my docket. My dismissal of plaintiff's complaint in no way affects her status in the class action before Judge Hellerstein.