| Seton Health at Schuyler Ridge Residential Health Care vDziuba |
| 2015 NY Slip Op 02826 [127 AD3d 1297] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| Seton Health at Schuyler Ridge Residential Health Care, Respondent, v Jeanne Dziuba,Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Iseman, Cunningham, Riester & Hyde, LLP, Albany (Marc A. Antonucci ofcounsel), for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered April11, 2014 in Saratoga County, which partially granted plaintiff's motion for summaryjudgment.
Defendant, a quadriplegic, resided at a licensed nursing home facility operated byplaintiff in the Town of Clifton Park, Saratoga County from January 8, 2010 throughNovember 23, 2011. Alleging that defendant refused to pay for the care, treatment andhousing it provided to her from January 8, 2010 through December 31, 2010, plaintiffcommenced this action for breach of contract, account stated and quantum meruit,seeking to recover $112,592.90 in unpaid invoices. After issue was joined, plaintiffmoved for summary judgment. Supreme Court granted plaintiff's motion with respect tothat part of its breach of contract claim that sought recovery for the cost of defendant'sroom and board at the facility during the relevant time period, and awarded plaintiffjudgment in the amount of $110,087.90, plus counsel fees. The court denied plaintiff'smotion to the extent that it sought to recover payment for therapy it allegedly provided todefendant. Defendant appeals.
Plaintiff, as the proponent of the motion, bore the initial burden of establishingentitlement to judgment as a matter of law on its breach of contract claim (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Robison v Sweeney,301 AD2d 815, 817 [2003]). In support of its motion, plaintiff offered, among otherthings, an October 2009 durable general power of attorney appointing defendant'smother, Patricia Dziuba, as her attorney-in-fact as well as a January 8, 2010 admissionagreement signed by Dziuba. Pursuant to the agreement, defendant agreed to pay for, orarrange for the timely payment of, the "daily basic rate" for a semi-private [*2]room and to be responsible for this payment during thependency of any Medicaid application or in the event that any such application wasdenied. Plaintiff also submitted a statement of charges, various invoices and theaffidavits of its executive director and resident accounts manager confirming thatdefendant resided in a semi-private room at the facility from January 8, 2010 throughDecember 31, 2010, during which time she was not covered by Medicaid.[FN1] These submissionsfurther established that the facility's daily rate for a semi-private room was $305 fromJanuary 8, 2010 through June 30, 2010, and $320 from July 1, 2010 through December31, 2010, resulting in a total amount of $103,865 due and owing for defendant's stay atthe facility for the relevant period.
This evidence was sufficient to establish a prima facie case for breach of contractwith regard to the amount due and owing for plaintiff's room and board at the facility (see Education Plus, Inc. vGlasser, 112 AD3d 1125, 1125-1126 [2013]; George S. May Intl. Co. v ThirstyMoose, Inc., 19 AD3d 721, 722 [2005]; Convenient Med. Care v MedicalBus. Assoc., 291 AD2d 617, 618 [2002]). Contrary to defendant's contention, thefailure of the agreement to specify the "daily basic rate" for a semi-private room does notrender the agreement so indefinite as to be unenforceable. "[A] price term is notnecessarily indefinite because the agreement fails to specify a dollar figure, or leavesfixing the amount for the future, or contains no computational formula" (Cobble HillNursing Home v Henry & Warren Corp., 74 NY2d 475, 483 [1989], certdenied 498 US 816 [1990]; accord Village of Lansing v Triphammer Dev.Co., 193 AD2d 919, 920 [1993]). Rather, where at the time of the agreement theparties have manifested their intent to be bound, a price term will be sufficiently definiteif it can be defined by reference to, among other things, "an objective extrinsic event,condition or standard," or by the subsequent conduct of the parties (Joseph Martin,Jr., Delicatessen v Schumacher, 52 NY2d 105, 110 [1981]; see Matter of 166Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp., 78 NY2d 88, 91 [1991];Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d at 483; Capital Dist. Enters., LLC vWindsor Dev. of Albany, Inc., 53 AD3d 767, 769 [2008]). Here, the language ofthe agreement is sufficiently clear to manifest the parties' intention to be bound and theprice term can be objectively supplied by reference to the facility's daily rate during therelevant time, which was set forth in periodic invoices sent to defendant (seeProtection Indus. Corp. v Kaskel, 262 AD2d 61, 62 [1999]; see also Provident Bay Rd., LLC vNYSARC, Inc., 117 AD3d 1356, 1359 [2014]; Capital Dist. Enters., LLC vWindsor Dev. of Albany, Inc., 53 AD3d at 769). Accordingly, the burden shifted todefendant to demonstrate the existence of a triable issue of fact with respect to hercontractual liability for her room and board at the facility during the relevant time (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]; Heritage Springs Sewer Works,Inc. v Boghosian, 61 AD3d 1038, 1040-1041 [2009]).
In opposition to the motion, defendant did not deny that she occupied a semi-privateroom at the facility from January 8, 2010 through December 31, 2010, that she was notcovered by Medicaid during that time or that she has failed to pay for or arrange for thepayment of her stay at the facility for the period in dispute. Further, although she claimsthat she was unaware of the daily rate for a semi-private room at the time of heradmission to the facility and that, once she received a bill, she objected to the charges byphone, defendant does not allege that she agreed to a daily rate other than that set forth inthe statement of charges and invoices or otherwise demonstrate that she entered into theagreement with a different understanding as to the price term. Defendant's contentionthat Dziuba was acting individually, rather than as her [*3]agent, when she signed the agreement is bothunsubstantiated and belied by the agreement itself.[FN2] Moreover, by accepting the benefits ofthe agreement for nearly two years, defendant is deemed to have ratified the agreement(see Beutel v Beutel, 55 NY2d 957, 958 [1982]; Provident Bay Rd., LLC vNYSARC, Inc., 117 AD3d at 1359; Hoskins v Skojec, 265 AD2d 706, 707[1999], lv denied 94 NY2d 758 [2000]). Accordingly, defendant's submissionsfailed to raise a triable issue of fact on that portion of plaintiff's breach of contract claimseeking the recovery of $103,865 for defendant's room and board at the facility.
With respect to that portion of plaintiff's breach of contract claim that soughtrecovery for monthly assessments mandated by the "Health Facility Cash Assessmentprogram" (see Public Health Law § 2807-d), however, summaryjudgment was improperly awarded to plaintiff. Simply put, there is nothing in theagreement rendering defendant responsible for payment of this monthly assessment. Asplaintiff failed to demonstrate its entitlement as a matter of law to defendant's payment ofsuch monthly assessments, which totaled $6,222.90 during the relevant period, themotion should have been denied to that extent, regardless of the sufficiency ofdefendant's opposing papers (see Vega v Restani Constr. Corp., 18 NY3d 499, 503[2012]; Cole v Champlain Val.Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285 [2014]).
Finally, we reject defendant's contention that plaintiff's summary judgment motionwas premature. Defendant had ample time and opportunity to conduct discovery duringthe roughly 21 months between joinder of issue and plaintiff's motion, and did notproffer an adequate excuse for her failure to do so (see Meath v Mishrick, 68NY2d 992, 994-995 [1986]; Ullmannglass v Oneida, Ltd., 121 AD3d 1371, 1373[2014]). Nor has defendant made the requisite showing that discovery would yieldmaterial and relevant evidence sufficient to defeat the motion (see CPLR 3212[f]; Hobler v Hussain, 111AD3d 1006, 1009 [2013]; 2N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1396 [2009], lvdenied 14 NY3d 706 [2010]).
Lahtinen, Garry and Lynch, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted that part of plaintiff's motionfor summary judgment on its breach of contract claim seeking recovery for certainmonthly assessments; motion denied to that extent; and, as so modified, affirmed.
Footnote 1:Defendant's initialapplication for Medicaid was denied, and she was not covered by Medicaid until January1, 2011.
Footnote 2:Defendant also argues,for the first time on appeal, that Dziuba lacked authority to enter into the agreement onher behalf because she had renounced her power of attorney prior to the execution of theagreement. Not only is this claim unpreserved for our review (see Liere v State of New York,123 AD3d 1323, 1323-1324 [2014]; Matter of LaBarbera v Town of Woodstock, 55 AD3d1093, 1094 [2008]), but it is also belied by the 2009 power of attorney appointingDziuba as defendant's attorney-in-fact and documentary evidence that Dziuba resigned asher attorney-in-fact in March 2010, well after the execution of the agreement.