| Sunshine Care Corp. v Warrick |
| 2012 NY Slip Op 08111 [100 AD3d 981] |
| November 28, 2012 |
| Appellate Division, Second Department |
| Sunshine Care Corp., Doing Business as Hempstead Park NursingHome, Appellant, v Betty Warrick, Respondent. |
—[*1]
In an action to recover damages for breach of contract and on an account stated, the plaintiffappeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered July 6, 2010,which denied its motion for summary judgment on the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's motion which was for summary judgment on the cause of action torecover damages for breach of contract, and substituting therefor a provision granting that branchof the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff, Sunshine Care Corp., doing business as Hempstead Park Nursing Home(hereinafter the nursing home), commenced the instant action to recover a balance of $64,616incurred for the room, board, and skilled nursing services provided to the defendant'snow-deceased husband who resided at the nursing home from November 1, 2006, until hisdischarge on September 21, 2007. In its motion for summary judgment on the complaint, thenursing home argued that the defendant breached the nursing home admission agreement, whichshe executed as her husband's designated representative and, thus, is liable for the balance owing.The Supreme Court denied the motion, and the nursing home appeals.
Pursuant to the Nursing Home Reform Act, "[w]ith respect to admissions practices, a skillednursing facility must . . . not require a third party guarantee of payment to thefacility as a condition of admission (or expedited admission) to, or continued stay in, the facility"(42 USC § 1395i-3 [c] [5] [A] [ii]). However, with respect to contracts with legalrepresentatives, "[s]ubparagraph (A) (ii) shall not be construed as preventing a facility fromrequiring an individual, who has legal access to a resident's income or resources available to payfor care in the facility, to sign a contract (without incurring personal financial liability) to providepayment from the resident's income or resources for such care" (42 USC § 1395i- [c] [5][B] [ii]). Here, the admission agreement did not require the defendant to guarantee payment forher husband's care as a condition of his admission to, or his continued stay in, the nursing home.The agreement stated, inter alia, that the designated representative agrees to "provide paymentfrom the resident's income or resources to the extent that he/she has access to such incomeand resources without the designated representative incurring personal financial liability"(emphasis added). However, the agreement goes on to state that the designated representativewould incur personal liability "if her actions or omissions have caused or contributed to thenonpayment of Facility's fees," and that such actions or omissions included "(i) [*2]a failure to utilize the resident's funds to pay for the resident's careat the Facility when the designated representative has control over the resident's funds by way ofa Power of Attorney [or] access to joint accounts, [or] (ii) misappropriating the resident's funds."Thus, the defendant could be held personally liable for the cost of the decedent's care if it wasshown that she breached the terms of the agreement by impeding the nursing home fromcollecting its fees from the decedent's funds or resources over which the defendant exercisedcontrol (see Troy Nursing &Rehabilitation Ctr., LLC v Naylor, 94 AD3d 1353, 1354-1355 [2012]; PutnamNursing & Rehabilitation Ctr. v Bowles, 239 AD2d 479, 481 [1997]).
The nursing home established its prima facie entitlement to judgment as a matter of law onits breach of contract cause of action. The nursing home presented proof that the defendant wasgiven a durable power of attorney on October 5, 2006, prior to her husband's admission to thenursing home on November 1, 2006, which afforded her legal access to, and control of, amongother things, her husband's banking, insurance, and retirement benefit transactions. The nursinghome also presented the admission agreement, which the defendant admitted she reviewed andsigned, and wherein, as noted above, she agreed in her capacity as her husband's designatedrepresentative and spouse, to, among other things, pay the cost of care provided by the nursinghome from her husband's income and resources beyond that which was covered by Medicare orinsurance. The nursing home further proffered the defendant's deposition testimony averring that,at the time of her husband's admission to the nursing home, and at the time of his death, herhusband had ample resources to pay the cost of the room and board and care rendered to him bythe nursing home. In addition, the nursing home also presented evidence demonstrating that thedefendant knew of her obligation to pay under the admission agreement since she made apayment of $10,000 in response to its invoices.
In opposition, the defendant failed to raise a triable issue of fact. The defendant presented anaffidavit claiming that, at the time of her husband's admission to the nursing home, he had veryfew assets, and that the bulk of the money contained within her and her husband's joint bankaccounts was contributed by her. However, these claims are contrary to her prior depositiontestimony, and we reject them as an attempt to create feigned issues of fact designed to avoid theconsequences of the earlier testimony (see generally Soussi v Gobin, 87 AD3d 580, 581-582 [2011]; Vela v Tower Ins. Co. of N.Y., 83AD3d 1050, 1051 [2011]). Moreover, the defendant admitted to expending the bulk of theparties' joint assets while her husband was a resident in the nursing home. Accordingly, theSupreme Court should have granted that branch of the nursing home's motion which was forsummary judgment on the cause of action to recover damages for breach of contract.
Under the circumstances of this case, the Supreme Court properly denied that branch of thenursing home's motion which was for summary judgment on its cause of action for an accountstated. Mastro, J.P., Balkin, Sgroi and Cohen, JJ., concur.