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January
15 Friday
2010

John Hancock Life Insurance Co. v. Perchikov

The opinion of the court was delivered by: Gershon, District Judge

By motion dated September 29, 2008, cross-plaintiff Laryssa Vasserman, through her administratrix Elizabeth Katchalova ("Katchalova" or "plaintiff"), seeks default judgment against cross-defendant Euguene Perchikov a/k/a Eyal Shahar ("Perchikov" or "defendant"). Katchalova seeks to recover (1) life insurance proceeds received by Perchikov from Union Central Life Insurance Company as a result of Vasserman's death, plus interest; (2) damages for wrongful death, plus interest; and (3) punitive damages in the sum of $10 million. For the reasons stated below, Katchalova's motion for default judgment is granted, and damages are awarded in the sum of $6,826,466.01.*fn1

I. Factual Background*fn2

Cross-plaintiff Elizabeth Katchalova, a resident of Kings County, New York, is the administratrix of the estate of Laryssa Vasserman. Vasserman, who was a resident of Ukraine until immigrating to New York in 1999, died on November 19, 2002. At the time of her death, Vasserman did not understand, speak, read, or write English. Cross-defendant Eugene Perchikov, a/k/a Eyal Shahar, is believed to be a citizen and resident of Israel. During frequent visits to the United States, he resided with Ms. Vasserman, with whom he had a romantic relationship, at her apartment in Brooklyn. At all times relevant to this action, Ms. Vasserman was married to but separated from Alexander Vasserman ("A. Vasserman" or "Mr. Vasserman"), and had a daughter, Elizabeth (Yelizaveta) Klyuchnikova ("Klyuchnikova"), from a previous marriage. Klyuchnikova was born on February 22, 1984, and resided with her mother at all times until Ms. Vasserman's death. Ms. Vasserman was the sole source of financial support for her daughter, and received no financial support from either her first husband (Klyuchnikova's father) or from Mr. Vasserman.*fn3

Ms. Vasserman applied for three life insurance policies in late 2000-one for $1,000,000 from Union Central Life Insurance Company ("Union Central"), one for $1,000,000 from Metropolitan Life Insurance Company ("MetLife"), and a third for $1,500,000 from Allstate Life Insurance Company ("Allstate"). The Allstate application listed Vasserman's sister Irena Esina as the primary beneficiary and her daughter Elizabeth as the contingent beneficiary. Ms. Vasserman withdrew her application before Allstate could act on it. MetLife issued a policy to Ms. Vasserman. The Union Central application, which resulted in the issuance of a policy, initially listed Ms. Vasserman's husband, Alexander Vasserman, as the primary beneficiary. Later, Ms. Vasserman changed the primary beneficiary of her Union Central policy to Irena Esina, and designated Eugene Perchikov as the contingent beneficiary, identifying both Esina and Perchikov as her cousins. Ms. Vasserman again changed her Union Central beneficiary ten months later, designating her "cousin" Eyal Shahar as the primary beneficiary.

Around the same time, Ms. Vasserman applied for a $1,000,000 life insurance policy from John Hancock. In that application, she listed Eugene Perchikov as her "husband" and primary beneficiary. When this policy lapsed in early 2001, Ms. Vasserman applied for a new $1,000,000 life insurance policy from John Hancock, this time listing Perchikov as Vasserman's "cousin" and primary beneficiary. John Hancock again issued the policy.

Perchikov accompanied Vasserman to each meeting with insurance company representatives and provided information to the companies about Ms. Vasserman's employment, income, marital status, and beneficiaries, because Vasserman could not communicate in English. Perchikov also paid the premiums on each of Vasserman's policies.

On November 19, 2002, Perchikov assaulted, battered, and murdered Ms. Vasserman for the purpose of obtaining the proceeds of the life insurance policies in force at the time of her death. Because the two year contestable period had expired, Union Central immediately paid $1,000,000 plus interest to Shahar/Perchikov as sole primary beneficiary of Vasserman's life insurance policy.*fn4 MetLife and John Hancock disqualified Perchikov from receiving Ms.

Vasserman's insurance benefits because he had intentionally caused her death, and they refused to pay him. Katchalova alleges that she-as administratrix of Vasserman's estate-is the proper beneficiary of the proceeds of Vasserman's Union Central policy. She further alleges that Perchikov is liable for wrongful death and for punitive damages.

II. Analysis

A. Entry of Default Judgment

Rule 55(a) of the Federal Rules of Civil Procedure sets forth the procedures for securing a default judgment in cases where "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Fed. R. Civ. P. 55(a). Katchalova has completed the first step of Rule 55's two-part process by requesting that the Clerk of Court enter default judgment. Default was entered on June 3, 2008. Since Perchikov has failed to contest the default, this court may complete the Rule 55 process by entering a default judgment. Fed. R. Civ. P. 55(b).

Here, plaintiff alleges that Perchikov was unjustly enriched by receipt of Ms. Vasserman's Union Central life insurance proceeds; and that he is liable for wrongful death because he killed Ms. Vasserman specifically in order to recover said proceeds. Plaintiff's well-pleaded allegations, together with defendant's failure to appear at all in connection with this case, make clear that default judgment is appropriate in this case.

Under New York law, a life insurance beneficiary who kills the insured is disqualified from collecting the insured's life insurance proceeds. See Riggs v. Palmer, 70 Sickels 506, 22 N.E. 188 (N.Y. 1889); In re Barrett, 224 A.D.2d 415 (2d Dep't 1996). By submission of the certified copy of the affidavit of Union Central claims examiner Jill O'Connor, which was originally submitted in the state court action Katchalova v. Perchikov, No. 45186/03 (Sup. Ct. Kings Cty. 2007), aff'd 43 A.D. 3d 873 (2d Dep't 2007), Katchalova has proved that Union Central paid the $1,000,000 proceeds of Ms. Vasserman's life insurance policy to Perchikov. See Debrot Cert. Ex. F at 7. Because Perchikov was not a proper beneficiary, he has "received the money . of another which is inequitable or against good conscience for him . to retain." AGF York 57 L.P. v. Glikman, 24 Misc. 3d 1225(A), 2009 WL 2208405, at *5 (Sup. Ct. N.Y. Cty. July 16, 2009) (citing Miller v. Schloss, 28 N.Y. 400, 407 (1916)). As such, Katchalova has offered sufficient proof of her claim that Perchikov was unjustly enriched by receipt of Vasserman's life insurance proceeds, which were paid to him to the detriment of Ms. Vasserman's rightful beneficiaries-her estate and her daughter. See Estate of Grieco v. Bankers Am. Life Assurance Co., 251 A.D.2d 446, 447 (2d Dep't 1998).

Katchalova also has established a claim for wrongful death. Under New York law, "the personal representative . of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act . which caused the decedent's death against a person who would have been liable to the decedent . if death had not ensued.." N.Y. Est. Pow. & Trst. § 5-4.1. Had Ms. Vasserman survived, Perchikov would have been liable to her for battery based upon the facts alleged in Katchalova's cross-complaint. See Debrot Cert. Ex. C; see also, e.g., Wende C. v. United Methodist Church, 4 N.Y.3d 293, 298 (2005).

Given that Katchalova has adequately supported the allegations, and given that defendant has not once appeared in these proceedings, the court determines that the grounds for default are clearly established, finds no reason to delay further resolution of this case, and grants Katchalova's motion for default judgment.

B. Damages

"While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible to mathematical computation." Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). Where, as here, the plaintiff has submitted detailed affidavits informing the court of the basis for the recovery sought, the court can set damages without holding an evidentiary hearing. See Fed. R. Civ. P. 55(b)(2); see also Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997). Having reviewed the Debrot certification and the Freifelder, Katchalova, Klyuchnikova, and Vasserman affidavits, the court finds that Perchikov is liable for the following damages.