Beth Abraham Health Servs. v Mildred Eccleston-Johnson

Beth Abraham Health Servs. v Mildred Eccleston-Johnson 2012 NY Slip Op 01564 Decided on March 1, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 1, 2012
Tom, J.P., Friedman, Acosta, DeGrasse, Román, JJ.
6938 102367/09

[*1]Beth Abraham Health Services, Plaintiff-Respondent,

v

Mildred Eccleston-Johnson, Defendant-Appellant.




George Bundy Smith, New York, for appellant.
Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato
& Einiger, LLP, Lake Success (Sean P. Lenihan of counsel), for
respondent.

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered April 14, 2011, in an action to recover for care and services provided to defendant, awarding plaintiff the total amount of $57,278.58, and bringing up for review an order, same court and Justice, entered on or about November 22, 2010, which granted plaintiff's motion for summary judgment, unanimously affirmed, without costs.

The affidavit of service is prima facie evidence of proper service, and no issue of fact is raised by defendant's conclusory denial of service (see Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222, 223 [1998]). Plaintiff nursing facility made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that defendant resided at the nursing facility during the time specified, failed to pay the amount due and owing, was not eligible to receive Medicare benefits, and was denied Medicaid benefits. In response, defendant failed to offer any evidence sufficient to raise an issue of fact. Defendant failed to preserve her argument that necessary parties have not been joined in this action, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits; defendant has not provided any evidence that she was not competent to enter into a contract at the time she entered the nursing facility or that a third party consented to pay for the facility's services.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 1, 2012

CLERK