Genworth Life Insurance Company of New York v. Dwaileebe et al

Filing 41

-CLERK TO FOLLOW UP-DECISION AND ORDER finding as moot 39 Motion to Stay consideration of the motion to approve the settlement; denying 29 Motion for Settlement; and staying the action in its entirety pending resolution of mental hygiene proceedings in New York State Supreme Court.. Signed by Hon. Michael A. Telesca on 6/19/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
GENWORTH LIFE INSURANCE COMPANY
OF NEW YORK,
Plaintiff,

12-CV-6330T
ORDER

v.
GARY S.

DWAILEEBE, et al.,

Defendants.
________________________________________
By motion dated June 19, 2013, defendant David Dwaileebe moves
to stay this Court’s consideration of a pending motion that he,
along

with

Insurance

several

Company

co-defendants

of

New

York

and

plaintiff

(“Genworth”),

Genworth

previously

Life
filed

seeking approval of a settlement in this action. Specifically, the
motion

previously

brought

by

Genworth

and

defendants

David

Dwaileebe, George Dwaileebe, James Dwaileebe, Michael Dwaileebe,
Laurie J.

Overmeyer (nee Dwaileebe), Jenny S.

Dwaileebe), and Linda A.

Trapani (nee

Van Ness (nee Dwaileebe) sought approval

of a distribution of life insurance benefits held by Genworth in
accordance
Geraldine

with

a

revised

H. Dwaileebe

beneficiary

shortly

before

designation
her death.

signed

by

Under

the

original designation of beneficiaries, David Dwaileebe was the sole
beneficiary of the plan.

Under the revised designation, all 10 of

Geraldine Dwaileebe’s children were named as beneficiaries.
Represented by new counsel, David Dwaileebe now moves to stay
this court’s consideration of the motion to approve the settlement
pending

the

outcome

of

a

state-court

competency

proceeding

regarding whether or not he was competent to disclaim his 100%
interest in the life insurance proceeds and accept the smaller
30.25% interest that he agreed to, and whether he is competent to
manage his financial affairs going forward.

He claims that he was

coerced by his brother George Dwaileebe into signing an agreement
that he did not understand, and is not competent to understand.
Rather than stay the current motion to approve the settlement,
the motion to approve the settlement is denied without prejudice,
and this action is stayed pending the outcome of the mental hygiene
proceeding pending in New York State Supreme Court.

It is clear

from the record before this court that there are serious questions
as to the validity of the revised beneficiary designation signed by
Geraldine H. Dwaileebe shortly before her death, and the disclaimer
of benefits signed by David Dwaileebe.
It is significant to note that in his Answer to the Complaint,
Mark Dwaileebe alleges that it was their mother’s wish that all
benefits go to his brother David Dwaileebe, that David Dwaileebe is
incompetent to manage his own financial affairs, that his mother
was coerced into changing the designation of beneficiaries while
she herself was incompetent as a result of dying of cancer and
being heavily medicated, and that David Dwaileebe was coerced into
disclaiming his rightful benefit without understanding his actions.
In light of David Dwaileebe’s current motion to stay in which
he asserts that he was not competent to disclaim the benefits

he

was to receive under the original designation, I find that the
interests of justice are best served by denying the motion to
2

approve the settlement without prejudice, and staying the action in
its entirety pending the resolution of mental hygiene proceedings
in New York State Supreme Court.

David Dwaileebe’s motion to stay

consideration of the motion to approve the settlement is denied as
moot.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
____________________________
Michael A. Telesca
United States District Judge
DATED:

Rochester, New York
June 19, 2013

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