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April 17, 1980

Naomi WATSON, Plaintiff,

The opinion of the court was delivered by: BIUNNO

The facts before the court are relatively simple and straightforward. One James Watson, a New York resident and citizen, was a bus driver for defendant Manhattan and Bronx Surface Transit Operating Authority (MaBSTOA), a public benefit corporation created under § 1203-a of the New York Public Authorities Law.

Under a collective bargaining agreement between MaBSTOA and the Transport Workers Union of America, Mr. Watson was a participant in a "presumed" retirement benefit plan, also called a "death gamble", this being a right afforded to New York City governmental employees by sec. B 3-36.0(4) of the Administrative Code of the City of New York. As explained in the papers, the collective bargaining agreement makes these benefits applicable to MaBSTOA employees as though they were city governmental employees rather than employees of a corporate authority.

 As described, the benefit provides that where an employee has accumulated vested pension rights for retirement, but elects to continue in employment rather than retiring, then if he dies while so employed he is "presumed" to have retired on the day before his death. This presumption evidently entitles his named beneficiary (or his estate if the beneficiary predeceases) to the actuarial equivalent on a present value basis of the pension payments that would have accrued had he so retired and survived for his theoretical life expectancy.

 The parties are evidently in agreement that this lump sum or present value benefit amounts to some $ 112,000. as of the day before Mr. Watson's death on August 22, 1979.

 The affidavit for MaBSTOA carries a photocopy of Mr. Watson's notarized designation of his wife, the defendant Gloria Watson, as beneficiary. It is dated October 5, 1972.

 While in Washington, D.C., it is alleged that Mr. Watson took ill on August 18, 1979, was admitted to the District of Columbia General Hospital, and died August 22, 1979.

 From argument at the hearing, it appears that Mr. Watson's remains were prepared for burial by an undertaker in Washington, transported to New York for funeral services, and buried in Morris County, N.J.

 Although delicately phrased, the theme of the complaint implies that the widow caused decedent's death by "foul play." It alleges that plaintiff had been decedent's named beneficiary for 17 years, that the family did not learn of decedent's marriage or of the 1972 change of beneficiary until the time of the funeral, and that undue influence was exerted over decedent by defendant Gloria Watson to induce the change of designation of beneficiary.

 When the complaint was filed, plaintiff sought and obtained an order to show cause for preliminary injunction to restrain MaBSTOA from disbursing the benefit sum. The order was issued March 6, 1980 and was returnable March 24, 1980. All parties appeared by counsel.

 Both defendants challenged the jurisdiction of the court, which the complaint claimed under both 28 U.S.C. § 1331 (federal question) and § 1332 (diversity). One of the defendants produced a photocopy of the D.C. hospital records, just obtained, and this was ordered filed with a copy provided to plaintiff. Plaintiff asked for a continuance to allow time for the records to be reviewed by a medical consultant. Defendants objected that this would require a further court appearance. The court resolved this problem by directing that defendants need not appear on the adjourned date, and that no ruling adverse to them would be made without providing an opportunity to respond in writing to plaintiff's further argument on the adjourned date, with a copy of the transcript thereof to be provided to them.

 On the adjourned date plaintiff had not obtained the medical expert's review, and the matter was carried again to April 11, 1980, when plaintiff's further argument was heard. The points that follow were discussed at the hearing, though not in the order stated here.

 1. Service of process. It appeared that no summons had been issued or served on either defendant. Thus, the time for answer under F.R.Civ.P. 12 has not begun to run. Both defendants had received the complaint and order to show cause, along with the supporting papers, but no summons. In the New Jersey courts, certain actions may be processed in a summary manner under N.J. Court Rule R.4:67, by complaint and order to show cause but without summons. An order to answer is added to the order to show cause, and no summons is issued, N.J. Court Rule R.4:67-3.

 This is a highly efficient procedure by which cases involving only minor factual disputes and largely turning on questions of law can be decided promptly, expeditiously and inexpensively. Unlike the traditional motion for summary judgment, the court is allowed to hear and resolve minor factual issues and then decide the case. When it appears that the dispute is of greater magnitude than ...

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