Opinion
October 1, 1998
Appeal from the Supreme Court, New York County (Louise Gruner Gans, J.).
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, Green Co. v. William Penn Life Ins. Co., 220 A.D.2d 317). 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).
Concur — Milonas, J. P., Rosenberger, Ellerin and Andrias, JJ.