McCarthy v. Estate of Lawrence Edward McCarthy et al
| Suzanne McCarthy |
| Estate of Lawrence Edward McCarthy, Kateryna Zaharenko and Aetna Life Insurance Company |
| Kateryna Zaharenko |
| Aetna Life Insurance Company |
| Kateryna Zaharenko |
| Aetna Life Insurance Company |
| 1:2014cv06194 |
| August 6, 2014 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Jesse M. Furman |
| Employee Retirement Income Security Act of 1974 |
| 29 U.S.C. ยง 1132 |
| None |
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Filing
97
OPINION AND ORDER: For the foregoing reasons, the Court concludes that the Decedent was insolvent at all relevant times and that all transfers made by the Decedent to Zakharenko were constructively fraudulent. Accordingly, applying New York la w, the Court holds that Zakharenko is personally liable to the Estate for the value of the fraudulent transfers she received from the Decedent, or $357,105.83, less the value of any transferred assets Zakharenko is able to return to the Estat e. The Court also holds that a constructive trust should be imposed on the proceeds of the Aetna policy in favor of Plaintiffs. That sort of post-distribution constructive trust does not conflict with ERISA's objectives, and is therefore not preempted. It is therefore ordered that the Clerk of Court shall release the proceeds of the Aetna policy - $495,000 currently held in the Court's registry - to Plaintiffs. Distribution of that $495,000 sum should presumably be made pro rata according to the terms of the MSA, with 50% going to Suzanne and 25% each to Devon and Emma. Plaintiffs are directed to file a proposed judgment with the Court proposing an appropriate distribution of the Aetna proceeds be tween Plaintiffs. It is further ordered that, consistent with the conditional settlement reached by Plaintiffs and the Estate, the Estate is liable to Plaintiffs for $3,949,785.17 in compensatory damages plus interest, less the proceeds of the Aetna policy. Finally, Zakharenko filed crossclaims and counterclaims against Plaintiffs seeking an award of attorney's fees and expenses. (See Docket No. 56). In addition to submitting no evidence or argument in support of those claims, Za kharenko did not press those claims before the Court during the bench trial. (See Trial Tr. 7-18). The Court therefore dismisses those claims with prejudice for lack of proof. No later than November 13, 2015, Plaintiffs shall serve a copy of this O pinion and Order on Zakharenko by e-mail and shall promptly file proof of such service. In addition, and out of an abundance of caution, the Clerk of Court is directed to mail a copy of the Opinion and Order to Zakharenko at the address appearing on the docket. (Signed by Judge Jesse M. Furman on 11/10/2015) ***A copy of this order was forwarded to the Finance Unit on 11/12/2015. (tn) Modified on 11/12/2015 (tn).
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