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Ivf Investment Company, LLC v. Estate of Jeryl G. Natofsky


May 21, 2012


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1902-10.

Per curiam.


Argued March 6, 2012

Before Judges Carchman, Baxter and Maven.

The issues raised in this appeal are whether Judge Yolanda Ciccone: 1) properly conducted a Rule 4:67 summary proceeding; 2) correctly determined the identity of an insurance policy beneficiary; and 3) properly excluded witnesses' testimony. We answer these questions in the affirmative. Accordingly, we affirm and dismiss defendant's demand for a jury trial on the issue of beneficiary status because the trial judge appropriately resolved this issue as a matter of law. We remand for resolution of the remaining issues, which shall be resolved by a jury trial.


The critical facts are not in significant dispute. The various claims arise from the death of defendant Dr. Jeryl Natofsky (Natofsky),*fn1 who withdrew as a shareholder from a partnership shortly before his death.

On January 1, 2004, Natofsky joined third-party defendant Fertility and Gynecology Center, P.A. (FGC) as a shareholder.

To acknowledge his shareholder interest, Natofsky entered into a Shareholders' Agreement and a Stock Purchase Agreement with FGC. Pursuant to the Stock Purchase Agreement, the other shareholders of FGC, Dr. Susan Treiser and Dr. Michael Darder,*fn2 agreed to sell to Natofsky a combined one-third interest in FGC.

Plaintiff IVF Investment is a New Jersey limited liability company that was created by the members of FGC as a legal entity, separate and distinct from FGC.*fn3 The shareholders of FGC were also shareholders of IVF Investment, which was the beneficiary of insurance policies taken out in the name of each shareholder. IVF Investment was not a party to the FGC Shareholders' Agreement and did not employ Natofsky, nor did it have an obligation to purchase Natofsky's FGC stock in the event of his death.

Pursuant to the Shareholders' Agreement, upon severance, disability, death or withdrawal of a shareholder, FGC was required to purchase all shares of the withdrawing shareholder's stock (Buy-Out Provision). To fund a buy-out in the event of a shareholder's death, the Shareholders' Agreement also authorized FGC to purchase life insurance on the lives of the shareholders. Paragraph 14 of the Shareholders' Agreement provides:

(a) The Corporation may from time to time purchase policies of insurance, insuring the lives of one or more of the Shareholders . . . . The Corporation shall be the owner of the Policies, have custody of the Policies and be named as beneficiary of the Policies. The Corporation shall pay the premium on the Policies so long as the Board determines to maintain such insurance. . . . .

(b) Upon the death or permanent disability of a Shareholder, the Corporation shall promptly submit a claim for payment on any such insurance policies. The proceeds of the policies shall be used first to pay the acquisition costs of the Decedent's or Disabled Shareholder's shares. In the event that the insurance proceeds exceed the redemption price, the excess shall be used to discharge any compensation payment obligations of the Corporation to the Selling Shareholder, including prepayment of the promissory note for the redemption price, then to pay any liabilities of the Corporation secured by the guarantee of the Selling Shareholder, and the balance of the proceeds, if any, shall be paid to the Corporation.

[(Emphasis added.)]

In January 2005, Natofsky applied for a $3,000,000 life insurance policy (Natofsky policy) through defendant U.S. Financial Life Insurance Co. (U.S. Financial). Natofsky was identified as the policy's sole owner and insured. Natofsky signed the policy and designated IVF Investment as the 100% beneficiary, with no contingent beneficiary. Insurance agent Susan Pollard advised that she needed to obtain a co-signature on behalf of the insurance policy's owner, IVF Investment. Natofsky told Pollard that his signature on the policy was on behalf of IVF Investment, not himself individually.

U.S. Financial issued the Natofsky policy on May 21, 2005. Thereafter, consistent with Paragraph 14, either FGC or IVF Investment paid the annual renewal premiums associated with the Natofsky policy; Natofsky never paid any policy premiums. The beneficiary designated by Natofsky on the policy -- IVF Investment -- was never changed.

Pursuant to other provisions of the Shareholders' Agreement, which outlined the procedure for the repurchase of a withdrawing shareholder's shares, the parties negotiated for Natofsky to withdraw from FGC in February 2010. During the negotiations, FGC directed Pollard to inquire whether Natofsky wanted to continue the policy at his own expense and assume responsibility from IVF Investment for payment of the policy's premiums. Natofsky advised Pollard that he already had enough life insurance because his wife worked for an insurance company. During telephone conversations between Pollard and Natofsky in March and April 2010, Natofsky did not mention changing the beneficiary on the policy.

Natofsky entered into a Settlement and Release Agreement (Release Agreement) with the IVF parties on June 26, 2010. The parties memorialized Natofsky's desire to withdraw from FGC and release all of his interest in the affiliated entities. Additionally, FGC agreed to purchase Natofsky's fifty shares of stock for $100,000. Plaintiff purchased Natofsky's shares on June 16, 2010, pursuant to a Corporate Redemption Agreement that was incorporated in the Release Agreement. With FGC having satisfied its obligation to purchase Natofsky's stock, IVF Investment released its claims against Natofsky and his property.

Natofsky was paid $100,000 for compliance with the restrictive covenant provisions of the Shareholder Employment Agreement and $550,000 in deferred compensation. In consideration for these payments, Natofsky agreed in the Release Agreement that "[n]o other compensation, benefits or other monies are owed him by Physicians . . . [or] IVF Investment . . . ." Natofsky and the IVF Parties exchanged mutual releases wherein they waived any and all claims they might have against each other "[a]rising out of or relating to any conduct, matter, event or omission existing or occurring prior to the signing of this Settlement Agreement . . . ." The Release Agreement made no mention of IVF Investment's releasing its beneficiary status under the Natofsky policy.

Natofsky died on June 19, 2010. IVF Investment submitted a claim for the proceeds of the Natofsky policy on August 13, 2010. A month later, the Estate also submitted a claim for the same proceeds. Because of these competing claims, U.S. Financial refused to pay the proceeds until the parties resolved their dispute over beneficiary status.

Plaintiff filed a four-count complaint in the Law Division, seeking a declaration that IVF Investment was the owner and beneficiary of the Natofsky policy, seeking turnover of the $3,000,000 policy benefit and claiming that the Estate tortiously interfered with its right as 100% designated beneficiary to claim the policy's death benefit.

Defendant filed an answer, counterclaim, cross-claim, third-party complaint and jury demand. Defendant asserted nine defenses, including that IVF Investment "lacks standing to bring this claim as it: had no insurable interest in the life of the insured party"; "has released any claim it had as a beneficiary of the U.S. Financial Policy"; "has relinquished any right to claim that it is the beneficiary of the U.S. Financial Policy"; and has alleged claims that "are barred by settlement, payment and release." Defendant demanded "a trial by jury on all issues so triable."

In its counterclaim and third-party complaint against IVF Investment and third-party defendants FGC, Treiser, Darder and Yih, defendant sought a declaration that it was entitled to the Natofsky policy's death benefit because IVF Investment had released its beneficiary status pursuant to the Release Agreement. The Estate also sought damages against the IVF Parties for fraud, tortious interference with defendant's contractual rights and prospective economic advantages, and unjust enrichment.

Thereafter, plaintiff filed a notice of motion to proceed in a summary manner pursuant to Rule 4:67-1(b) and Rule 4:67-2(b), to determine the owner and beneficiary of the Natofsky policy.

The judge granted plaintiff's motion to proceed summarily and ordered a plenary hearing "[t]o determine ultimately the issues on the ownership as well as the beneficiary" of the Natofsky policy. She ordered that Pollard be deposed and testify during the hearing. Finally, the judge ordered that, if necessary, additional witness testimony would be ordered.

In an order entered on April 4, 2011, Judge Ciccone stated that defendant's defenses, "including the defense that [IVF Investment] released its claims as a beneficiary of the [U.S. Financial] Policy, shall not be presented or considered at this trial." In a supplemental letter opinion, the judge restated that this matter could be disposed of in its entirety by means of a summary proceeding. She not only noted that the tort claims involved in this matter were "entirely separate from the issue" she had decided but also observed that these tort claims could also be disposed of summarily, accepting the argument that a determination of ownership/beneficiary status would render moot the remaining tort claims. She recognized that "[t]he court, upon the finding of an existence of a genuine issue of material fact, shall order the action to proceed as a plenary action," and that the court "[a]t the hearing, or on motion at any stage in the action . . . for good cause shown, may order the action to proceed in a plenary fashion."

We granted the Estate's motion for leave to appeal the judge's order and subsequently remanded the matter to the Law Division to conduct a hearing limited to the issues the judge had set forth in her order. We retained jurisdiction.

The judge conducted a hearing, during which neither party presented any witnesses but instead relied on various documents presented for consideration. The judge issued an oral decision, concluding that plaintiff was the beneficiary of the insurance policy. She did not determine ownership, nor did she resolve the other issues in dispute. Defendant subsequently filed this appeal.


Defendant asserts that the judge did not conduct the Rule 4:67 proceeding properly, and consequently, defendant's right to a jury trial was violated. Specifically, defendant challenges the judge's determination that plaintiff was the beneficiary of the Natofsky policy; defendant also disputes the trial judge's decisions to exclude of the testimony of Marc Monkarsh, Randi Natofsky and Dr. Yih and to limit the admissible testimony to that of Susan Pollard, who did not, in fact, testify at the hearing. Defendant asserts that, had the testimony of the disputed witnesses been admitted, there would have been a genuine issue of material fact as to the identity of the beneficiary, thereby precluding the judge from pursuing the summary proceeding.


We first address our standard of review. The validity of a summary decision order and limited hearing is reviewed de novo. Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Where a timely jury demand is made, a summary proceeding may be utilized only when there is no genuine issue of material fact.

R. 4:67-2(b). Under Rule 4:67-5, a court must make findings of fact, either by adopting the uncontested facts in the pleadings after concluding that there are no genuine issues of fact in dispute, or by conducting an evidentiary hearing. Where a genuine issue of material fact is present, the issue should be "tried in an appropriate way," County of Bergen v. S. Goldberg & Co., 39 N.J. 377, 381 (1963), that is, in a plenary action.

We give deference to the trial court's factual findings when those findings are supported by adequate, substantial and credible evidence. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2009) (quotation marks and citations omitted). We are not bound by the trial court's legal conclusions, which are reviewed de novo. Toll Bros., Inc. v. Twp of W. Windsor, 173 N.J. 502, 549 (2002). For mixed questions of law and fact, we give deference to the supported factual findings of the trial court. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). However, we review de novo the trial court's application of any legal rules to such factual findings. Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 135 (1997).


We first address and dispose of the issue of insurable interest, concluding that plaintiff had an insurable interest in Natofsky's life. N.J.S.A. 17B:24-1.1(b) provides that "[n]o person shall procure or cause to procure any insurance contract upon the life . . . of another individual unless the benefits under that contract are payable to . . . a person having, at the time the contract was made, an insurable interest in the individual insured." N.J.S.A. 17B:24-1.1(a)(4) states:

A corporation has an insurable interest . . . (a) in the life of . . . any of its directors, officers or employees . . . (b) pursuant to any contractual arrangement with any shareholder concerning the reacquisition of shares owed to him at the time of his death or disability, in the life . . . of that shareholder for the purpose of carrying out that contractual arrangement . . . .

Natofsky was a shareholder of IVF Investment at the time of the policy's issuance. Pursuant to the Shareholders' Agreement, the parties agreed that IVF Investment would be designated to own Natofsky's policy, pay the premiums, hold beneficiary status and fund a buyout of Natofsky's shares upon Natofsky's death. Both the statute and the parties' agreement lead us to conclude that IVF Investment had an insurable interest in Natofsky's life at the time the Natofsky policy was issued.

Defendant asserts that the trial court erroneously concluded that plaintiff met its burden of proving by clear and convincing evidence, N.J.S.A. 2A:81-2; Chance v. McCann, 405 N.J. Super. 547, 572 (App. Div. 2009), that it had an insurable interest, based on a finding of fact that Natofsky "was a member and owned 25 percent of IVF Investment at the time of the policy issuance."*fn4 Natofsky was subject to the contractual arrangements, including the purchase of his various interests in IVF and its related companies. The judge did not err with respect to the finding that plaintiff had an insurable interest at the time the Policy was issued.


Defendant disputes the trial judge's finding that the Release Agreement negotiated between the parties did not alter plaintiff's status as the beneficiary of the Natofsky policy. An insurance policy beneficiary's interest is "subject to divestment only by the insured making a change in the beneficiary in the manner provided by the policy contract."

N.Y. Life Ins. Co. v. Estate of Hunt, 150 N.J. Super. 271, 274 (App. Div.), certif. denied, 75 N.J. 28 (1977). However, we have recognized changes in beneficiary status when there is "'substantial compliance' with the method prescribed in the policy." DeCeglia v. Estate of Colletti, 265 N.J. Super. 128, 134 (App. Div. 1993); Haynes v. Metro. Life Ins. Co., 166 N.J. Super. 308, 313, 316-17 (App. Div. 1979) (finding that insured could not have been expected "to do any more than he actually did in order to effectuate the desired change of beneficiary" when he submitted a written request to insurer to change the beneficiary designation but could not surrender policy because ex-wife possessed and refused to relinquish it). Nothing in the record suggests that Natofsky took any steps to change the beneficiary of the policy.

Defendant makes several contract-based arguments in support of its claim that the parties negotiated a release of plaintiff's beneficiary status under the Natofsky policy.

First, defendant asserts that when the relationship between parties changed, and they negotiated a broad mutual release agreement, beneficiary status changed as well. Defendant cites Vasconi v. Guardian Life Insurance Company of America, 124 N.J. 338 (1991), for the proposition that, when parties negotiate "a mutual waiver of all claims or obligations either [party] may have had to the other," id. at 341, "the proceeds of a life[] insurance policy . . . [are] encompassed within the terms of the settlement agreement," id. at 346, even if the name of the beneficiary on the insurance policy never changed.

We limit Vasconi, a matrimonial case, to its unique circumstances. Indeed, the equitable principles underlying Vasconi have little applicability here and are more relevant to the resolution of marital disputes. See Raynor v. Raynor, 319 N.J. Super. 591, 610 (App. Div. 1999) ("[I]n each case which allowed the insurance proceeds to be distributed to a person other than the named beneficiary, there was a writing to dispute the beneficiary designation. There was either a written divorce agreement or a divorce judgment which was found to control the disposition of the insurance proceeds.") (quoting Czoch v. Freeman, 317 N.J. Super. 273, 287 (App. Div. 1999)).

Outside of the matrimonial context, we have declined to allow the alteration of beneficiary status based solely on a change in the relationship between the insured and the named beneficiary. See Mitzner v. Lights 18, Inc., 282 N.J. Super. 355, 360 (App. Div. 1994), aff'd per curiam, 140 N.J. 573 (1995) (applying the principle that where the parties "were well aware of [the] existence [of the policy] during negotiations[,]

[w]hether they hoped to gain an advantage by their silence or whether they were merely inattentive during negotiations, there is no reason for [judicial] intervention"). See also N.Y. Life Ins. Co., supra, 150 N.J. Super. at 276-77 (declining to find changed beneficiary status when named beneficiary, who was designated as "intended wife of insured" in the policy, broke off the engagement and married a different person).

Defendant cites Goldring v. Franklin Equity Leasing Co., 195 S.W.3d 453 (Mo. Ct. App. 2006), for the proposition that, in an employment context, a general release terminates an employer's right to recover proceeds from life insurance policies insuring an employee's life. Goldring involved the purchase of a life insurance policy pursuant to a "split dollar agreement," the purpose of which being to fund an employee's fringe benefits. Id. at 453.

By contrast, here, the policy was for the benefit of the partnership, to ensure that the partnership would have funds to buy Natofsky's shares in the event of his death. The Natofsky policy was never intended to benefit Natofsky. By the terms of the Shareholder Agreement as well as under principles of contract law, the release in the Settlement Agreement did not alter plaintiff's beneficiary status with respect to the Natofsky policy. Mitzner, supra, 282 N.J. Super. at 360.

The dissent in Mitzner expressed the concern that the corporation in that case received a windfall. The dissenting Justice urged that the purpose of awarding the proceeds of the life insurance policy to the corporation was no longer served once the parties negotiated an inter vivos buyout. Supra, 140 N.J. at 577-78. The dissent sought to reject the majority view that the distribution of assets at the end of the partnership was the result of negotiations that considered the life insurance policy. Ibid. Here, by contrast, the language of the Shareholder Agreement demonstrates that the parties explicitly contemplated the situation that actually evolved. The Agreement provides:

In the event that the insurance proceeds exceed the redemption price, the excess shall be used first to pay the acquisition cost of the Decedent's . . . shares. In the event that the insurance proceeds exceed the redemption price, the excess shall be used to discharge any compensation payment obligations of the Corporation to the Selling Shareholder . . . then to pay any liabilities of the Corporation secured by the guarantee of the Selling Shareholder, and the balance of the proceeds, if any, shall be paid to the Corporation. All [other] insurance proceeds paid to . . . the Corporation . . . shall be included in the computation of the Corporation's book value.

In the absence of any evidence of an attempt to change or supersede this language, these terms govern the distribution of the Policy's proceeds.


Defendant next argues that by the explicit terms of the Release Agreement negotiated between the IVF Parties and Natofsky in June 2010, plaintiff relinquished its beneficiary status.*fn5 Paragraphs 7 and 8 of the Shareholders' Agreement require a withdrawing shareholder to sell his shares to the corporation. Natofsky withdrew from the corporation before his death. Therefore, the applicable Shareholder's Agreement provision is Paragraph 8(e), which states that, "except for the payments and monies [from the purchase of Natofsky's ownership interests in IVF, membership interests in IVF Realty and IVF Investment, and payments for his compliance with the restrictive covenant] of this Settlement Agreement, no other compensation, benefits or other monies are owed him . . . ." The life insurance policy was not part of the moneys, compensation, ownership interests or membership interests for which Natofsky negotiated because it was a corporate asset, to be used by the corporation to pay for shareholder buyouts. See Mitzner, supra, 282 N.J. Super. at 360. Cf. Goldring, supra, 195 S.W.3d at 457.

The Natofsky policy was unaffected by the Separation Agreement for the additional reason that it was not one of the "claims" released pursuant to the Release Agreement. The Release Agreement defined "claims" as "all claims, causes of action, complaints, lawsuits or liabilities of any kind." Plaintiff's right to the proceeds of the Natofsky policy does not fall under the contractual definition of a "claim."

When interpreting similar language in release agreements, the Court has held that "claims arising after the date of delivery of [a release] are not covered by it unless explicitly mentioned, since they would not appear to have been within the contemplation of the parties." Smith v. Smith, 72 N.J. 350, 359 (1977) (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 203-05 (1963)). A beneficiary's claim on an insurance policy does not arise until the death of the insured. Metro. Life Ins. Co. v. Woolf, 138 N.J. Eq. 450, 454-55 (1946) ("[t]he interest of the designated beneficiary . . . is a vested property right, payable if he survives the insured"). The Settlement Agreement does not include the beneficiary's claim because the claim did not arise before the relationship between plaintiff and Natofsky terminated.

It is a principle of contract interpretation that a release of "any and all claims, rights, actions and causes of action of any kind" waives only "those types of things" specifically mentioned. Isetts v. Borough of Roseland, 364 N.J. Super. 247, 255-56 (App. Div. 2003). The reasoning in Vasconi supports this principle. There, the release agreement specifically mentioned certain items of personal property, and the Court treated the references to the parties' property as demonstrating the parties' intent regarding the disposition of similar property interests, including insurance policy beneficiary designations. Supra, 124 N.J. at 346. The terms of the agreement before us are less comprehensive than release provisions that have been interpreted to encompass insurance beneficiary status. Under the principles of contract interpretation, reference to the policy, "rights," or "property rights" in the parties' Release Agreement indicates that the Release Agreement here did not release plaintiff's beneficiary status under the Natofsky policy.


The "Prior Agreements" clause of the Settlement Agreement provides, "each and every term and condition of this Corporate Redemption Agreement shall supersede any other agreement by and between the Seller and the Purchaser with respect to the sale and purchase of the stock . . . and all prior agreements with respect to the sale of the Interest shall be declared null and void." Defendant asserts that this language applies to the policy.

These provisions have no effect on the policy. The policy was not an agreement between plaintiff and Natofsky; it was an agreement between plaintiff and the insurance company.*fn6 See Equitable Life Assurance Soc. v. New Horizons, Inc., 28 N.J. 307, 309 (1958) ("[Key-man] insurance is usually taken out by an employer upon the life of an essential employee. Although the employee is the 'insured,' the employer is the applicant for, and owner and beneficiary of, the policy."). As we have noted, because the provisions of the Separation Agreement did not comply with the insurance provider's method for changing a beneficiary designation, the Separation Agreement had no effect on the status of the Natofsky policy's beneficiary.


Defendant next argues that the judge erred in barring testimony from Randi Natofsky, Natofsky's wife; Marc Monkarsh, a Florida insurance agent; and Dr. Yih, which testimony, defendant asserts, would have demonstrated a genuine issue of material fact as to the identity of the beneficiary of the Policy. "[I]n reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Estate of Hanges, supra, 202 N.J. at 382 (2009) (internal quotations and citations omitted).*fn7

Defendant attempted to introduce testimony of Randi and Monkarsh that defendant claimed supported its affirmative defense of fraudulent inducement. Randi and Monkarsh would have testified about a conversation Natofsky allegedly had with Monkarsh during which Natofsky and Monkarsh discussed the adequacy of Natofsky's life insurance coverage. Defendant would have argued that this testimony demonstrated that the IVF Parties incorrectly informed Natofsky that he was not the owner of the Natofsky policy. The trial judge determined that the testimony of Randi and Monkarsh was inadmissible during the summary proceeding, the focus of which was to determine the beneficiary of the Natofsky policy. Although we disagree with some of the details of the trial judge's reasoning, "an order or judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it." Isko v. Planning Bd., 51 N.J. 162, 175 (1968). See also Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993). We affirm the trial judge's decision to exclude this evidence.

The proposed testimony was irrelevant to the question of beneficiary status, N.J.R.E. 401, because beneficiary status cannot be changed by merely aspirational statements such as those attributed to Natofsky. The testimony defendant proffered contained no evidence of substantial compliance with the Natofsky policy's requirements for changing the beneficiary. The judge's ruling exclusion was proper.

The proffered testimony was also excludable as hearsay. The judge based her evidentiary ruling on N.J.R.E. 804(b)(6), an exception to the hearsay rule for trustworthy statements by deceased declarants. Natofsky, the deceased declarant, would have had firsthand knowledge because he was the insured named in the insurance policy and spoke with Pollard and the human resources representative. The statements are, therefore, not excludable due to reliability concerns. They are hardly self-serving; in fact, they show that Natofsky did not believe he was either the owner or the beneficiary of the policy. See DeVito v. Sheeran, 165 N.J. 167, 192-99 (2000) (finding no abuse of discretion in admission of the certification of a witness who was not yet involved in the litigation at the time of his death, observing that the certification was a sworn statement authorized by court rule and that the witness, an attorney, was aware of the consequences of lying). Cf. In re Estate of Zahn, 305 N.J. Super. 260, 272 (App. Div. 1997) (questioning admissibility of an "extremely self-serving" statement a decedent allegedly made to his paramour, to the effect that he wanted her to have his house "free and clear of any liens or encumbrances"); Jeter v. Stevenson, 284 N.J. Super. 229, 233-35 (App. Div. 1995) (questioning the trustworthiness of an unauthenticated, uncorroborated and self-serving statement taken under almost entirely unknown circumstances by an insurance adjuster whose company would benefit by its contents, particularly where there existed inconsistencies with another party's answers to interrogatories).

The reason for excluding the testimony of Randi and Monkarsh is that Natofsky's statements are embedded in multiple layers of hearsay. The statements Pollard and human resources personnel allegedly made to Natofsky are admissible as verbal impact statements. Carmona v. Resorts Int'l Hotel, 189 N.J. 354, 376-77 (2007); Toto v. Princeton Twp., 404 N.J. Super 604, 619 (App. Div. 2009). However, the statements of Monkarsh and Randi regarding Natofsky's conversations are excludable under N.J.R.E. 602, which provides that "a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Personal knowledge may not be derived from hearsay. Neno v. Clinton, 167 N.J. 573, 585-86 (2001). Randi lacks personal knowledge because she was neither present during the conversation between Natofsky and Monkarsh, nor a witness to Natofsky's exchanges with Pollard and the human resources personnel. The same is true of Monkarsh, whose only knowledge of Natofsky's conversations is based on Natofsky's statements. Exclusion of the testimony was proper.

The trial judge also correctly refused to allow defendant to read excerpts of Dr. Yih's deposition into the record because the deposition was "incomplete." In Glassboro v. Gloucester County Board of Chosen Freeholders, 100 N.J. 134, 154 (1985), cert. denied, 474 U.S. 1008, 106 S. Ct. 532, 88 L. Ed. 2d 464 (1985), the Supreme Court denied a party's motion to supplement the record with deposition testimony because the deponent had not been cross-examined, and the deposition was therefore incomplete. Like the deponent in Glassboro, Dr. Yih was not cross-examined during her deposition. The trial judge did not err in excluding her testimony on this basis.

Dr. Yih's deposition testimony was also properly excluded because it was cumulative and of little relevance. Dr. Yih's affirmative response to the question, "[D]id you have an understanding that the release that you were providing . . . . was reciprocal of the release that you were receiving from Jeryl Natofsky[?]" provides little to no assistance in interpreting the scope of the Release Agreement. The judge did not err in excluding her deposition testimony.

In light of the fact that defendant's proffered testimony was irrelevant and inadmissible on other grounds, the trial judge did not violate defendant's rights in determining, pursuant to the Rule 4:67 proceeding, that plaintiff was the beneficiary of the Natofsky policy.


The judge's decision not to address defendant's defenses and counterclaim was justified, as the summary proceeding was conducted to resolve the single issue of beneficiary status. There are several related claims pending, and defendant's opportunity to be heard and right to a trial by jury on other issues have not been foreclosed by the summary disposition of this single matter.

This court's order for remand directed the trial judge to proceed in accordance with her order, which required her to conduct a hearing on plaintiff's claims concerning the owner and beneficiary of the Natofsky policy. Following the remand, however, the trial judge did not decide the ownership issue. Defendant urges that we exercise original jurisdiction to determine the identity of the owner of the Policy. We decline to do so.

As the trial judge correctly concluded, the identity of the owner of the Natofsky policy is irrelevant for the purpose of determining the identity of the beneficiary, the latter determination being dispositive of all claims in this case. At the moment of Natofsky's death, the right of the beneficiary of the Natofsky policy vested and, because the beneficiary had not changed, the beneficiary's right could no longer be divested. See Prudential Ins. Co. v. Prashker, 201 N.J. Super. 553, 557 (App. Div. 1985); see also N.Y. Life Ins. Co., supra, 150 N.J. Super. 271, 274 (App. Div. 1977). That is to say, regardless of the identity of the owner, the beneficiary status could no longer be changed after Natofsky's death. The judge did not err in declining to determine the owner of the policy.


Finally, defendant seeks a remand for a jury trial before a different judge of the Law Division because defendant claims that the trial judge's rulings to date indicate that she cannot "have an open mind" on remand. Manchester Twp. Bd. of Educ. v. Thos. P. Carney, Inc., 199 N.J. Super. 266, 281 (App. Div. 1985). This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments. As discussed above, the record reveals no prejudicial bias of the judge against defendant. To the contrary, we affirm the judge's beneficiary status determination, as well as her evidentiary rulings. For these reasons, defendant has demonstrated no reason for a different trial judge to preside over the proceedings.

Since our grant of leave to file an interlocutory appeal was limited to the narrow issue of identification of the beneficiary, we affirm the order of December 13, 2011, and remand for disposition of the remaining issues in dispute. We do not retain jurisdiction.

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