Grandell Rehabilitation & Nursing Home, Inc. v Devlin
Annotate this CaseDecided on November 29, 2005
Supreme Court, Nassau County
Grandell Rehabilitation & Nursing Home, Inc., Plaintiff,
against
Charles Devlin, Defendant.
7804-03
Counsel for Plaintiff
Newman & Lickstein, Esqs.
235 East Water Street
Syracuse, New York 13202
Counsel for Defendant
Charles Devlin, pro se
76 Dart Street
East Rockaway, New York 11518
Leonard B. Austin, J.
Plaintiff, Grandell Rehabilitation & Nursing Home, Inc. ("Grandell") moves for summary judgment.
BACKGROUND
Grandell operates a nursing home/rehabilitation facility in Long Beach, New York.
At some point prior to the commencement of this action, Patricia Devlin ("Patricia") was admitted to Grandell. She received treatment at the Grandell facility and was discharged. The exact dates of Patricia's admission and discharge are not stated in either the complaint or the papers submitted in support of the motion.
Prior to Patricia's admission to Grandell, Theresa Devlin ("Theresa"), her daughter-in-law, signed a Financial Agent's Personal Agreement for the Benefit of Resident ("Agreement"). The Agreement designated Theresa, as the Patricia's financial agent.
The Agreement provided that Theresa was not obligating herself to pay for the cost of Patricia's care from her own funds. The Agreement obligated Theresa, to the extent that she had access to Patricia's funds, to use those funds to pay the charges incurred by Patricia during her stay at Grandell. To the extent Patricia become Medicaid eligible, Theresa agreed to pay from Patricia's income any amount that Medicaid required Patricia to pay towards the cost of her care. Finally, the Agreement required Theresa to assist Grandell in filing insurance claims and to provide Grandell with information regarding Patricia's assets.
Theresa also executed an "Application for Admission" dated April 11, 2002 ("Application"). The Application indicated the Patricia's sole source of income was her monthly Social Security benefit. Her only bank account was a checking account in which she had on deposit the sum of slightly over $1,200. The Application indicated that Defendant Charles F. Devlin ("Charles"), Patricia's son and Theresa's husband, was the owner of the account. The Application further stated that, in August 1999, Patricia transferred a savings account with a balance of $4,000 to Charles. It is unclear from the papers whether, at the time the Application was completed, Patricia maintained these accounts jointly with Charles or Charles' name was the sole name on the account. The application listed Charles as the "Person responsible for finances and/or all correspondence."
Neither the Application nor Agreement make Theresa or Charles personally liable for any charges incurred by Patricia at Grandell. Indeed, Charles did not sign either the Application or Agreement.
This action was commenced on May 20, 2003. After making allegations regarding the status of the parties, the complaint alleges:
"(3) That heretofore and on or before October 22, 2002, Plaintiff to the Defendant sold and delivered certain goods, wares and merchandiseand/or rendered certain work, labor and services of the agreed price with fair and reasonable value of $80,164.02, of which part/no part has been paid, leaving as a balance due the sum of $80,164.02 all of which has been duly demanded."
The complaint then demands damages against Charles in the sum of $80,164.02 together with interest from October 22, 2002 and costs and disbursements.
In response to being served with the summons and complaint, Charles sent a letter to Grandell's attorney indicating that he did not believe he was responsible for his mother's debts. He further asserts that the charges were not in accordance with his mother's agreement with [*2]Grandell. Finally, he stated that his mother was Medicaid eligible when she was admitted to Grandell. The papers regarding Patricia's Medicaid eligibility were given to an employee of Grandell who he alleged mishandled the processing of the application for payment causing Patricia to lose her Medicaid eligibility. Counsel for Grandell has chosen to treat Charles' letter as his answer.
Grandell has now moved for summary judgment.
DISCUSSION
Summary judgment is a drastic remedy which will be granted only when the moving party established that there are no triable issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); and Andre v. Pomeroy, 35 NY2d 361 (1974).
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. Lesocovich v. 180 Madison Avenue Corp., 81 NY2d 982 (1993); and Zuckerman v. City of New York, 49 NY2d 557 (1980). If the party seeking summary judgment fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985); Widmaier v. Master Products Mfg., 9 AD3d 362 (2nd Dept. 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept. 1999).
In this case, summary judgment must be denied because Grandell has failed to establish a prima facie entitlement to judgment as a matter of law.
To the extent that Grandell seeks recovery for breach of contract, it has failed to establish a prima facie entitlement to judgment as a matter of law because it has failed to prove the existence of a contract between Charles and itself. See, Furia v. Furia, 116 AD2d 694 (2nd Dept. 1986); and Sylmark Holdings Ltd. v. Silicone Zone International, Ltd., 5 Misc 3d 285 (Sup.Ct., N.Y.Co. 2004). Indeed, a party may not maintain an action for breach of contract against a party with whom they are not in privity. LaBarte v. Seneca Resources Corp., 285 AD2d 974 (4th Dept. 2001); and M. Paladino, Inc. v. J. Luchese & Sons Contracting Corp., 247 AD2d 515 (2nd Dept. 1998).
The true basis for Grandell's claim is set forth in Paragraph 6(a) of the affidavit of Solomon Rubin, Grandell's controller which states:
"That prior to commencement of this action, bills and, or statements of account were sent to Defendant for the amount owed by Defendant to Plaintiff, and even though the Defendant objected to the responsibility of payment for medical expenses for the minor child." (Emphasis added.)
Apparently, Grandell is asserting a cause of action seeking to hold Charles liable on the theory of an account stated. Grandell is also premising this action on the obligation of a parent to pay for necessary medical expenses incurred on behalf of a minor child (See, Dunphy v. J & I Sports Enterprises, Inc., 297 AD2d 23 [2nd Dept. 2002]; and Family Court Act §415) even though Defendant is the child of Grandell's patient, Patricia.
A party establishes a prima facie case for an account stated by proving that the Defendant received and retained bills for services rendered to the Defendant without objection. Nebraskaland, Inc. v. Best Selections, Inc., 303 AD2d 662 (2nd Dept. 2003); and Herrick Feinstein LLP v. Stamm, 297 AD2d 477 (1st Dept. 2002). A cause of action for an account stated cannot be maintained where the Plaintiff does not establish that an account was presented to the Defendant or where the Defendant disputes the account as stated. Abbott, Duncan & [*3]Wiener v. Ragusa, 214 AD2d 412 (1st Dept. 1995). It is undisputed that the services were rendered to Patricia; not Charles. Grandell has failed to present any evidence that it ever issued an account to Charles. The complaint and the papers submitted in support of the motion do not indicate the date or dates upon which statements of account were purportedly sent to Charles. In fact, neither the complaint nor the papers submitted in support of the motion contain a copy of any such statement of account. Even if it did, Charles would have no legal obligation to contest an account for services rendered to his mother and for which he accepted no responsibility.
There is no question but that Charles has effectively disputed the claimed amount due. His letter answer clearly contests the charges for the room and the medicine. Grandell has simply failed to submit proof in evidentiary form establishing a prima facie case or even a valid cause of action on an account stated. Accordingly, to the extent that the complaint states a claim for account stated, it must be dismissed. CPLR 3211(a)(7).
The complete lack of merit of Grandell's claim is reflected in the statement in the Rubin affidavit that Charles "...objected to the responsibility of payment for medical expenses for the minor child." Patricia is not a minor child. Her Application, which Grandell submits to the Court, states her date of birth as "6/21/28", her age as "72" and her marital status as "widow." The Application lists Charles as her son. There can be no doubt that Grandell and its attorneys were aware of the fact that Patricia was an adult and that Charles was her son.
There is no common law duty obligation of a child to support or pay the debts of a parent. See, Ulrich v. Ulrich, 136 NY 120 (1892); Rutecki v. Lukaszwski, 273 App.Div. 638 (4th Dept. 1948); and Jacobs v. Newton, 1 Misc 3d 171 (Civ. Ct. Kings Co. 2003). Absent an agreement, a child is not responsible for the support of a parent. Matter of Summers v. D'Elia, 95 AD2d 184 (1983); and Matter of State Welfare Commissioner v. Mintz, 28 AD2d 14 (2nd Dept. 1967). Any legal obligation to support a parent must be based upon a contract. See, 2 NY Jur2d Domestic Relations §1127.
Furthermore, an agreement to pay for medical or nursing home care of another must be in writing signed by the party to be charged. See, Lichtman v. Grossbard, 129 AD2d 437 (1st Dept.), amended on rearg., 133 AD2d 38 (1st Dept. 1987), affd., 73 NY2d 792 (1988); and General Obligations Law §5-701(2).
Grandell has neither pleaded nor proven the existence of a contract whereby Charles agreed to pay for the obligations of his mother. Grandell has failed to establish a prima facie entitlement to judgment as a matter of law. Therefore, its motion must be denied.
CPLR 3212(b) gives the court the authority to grant summary judgment to the non-moving party without the necessity of a cross-motion, if the court finds that the non-moving party is entitled to summary judgment. Such relief may be granted in connection with the cause of action that is the subject of the summary judgment motion.
Evangelista v. Ward, 308 AD2d 504 (2nd Dept. 2003); and Campos v. New York City Housing Auth., 295 AD2d 386 (2nd Dept. 2002).
Such relief is appropriate in this case. Grandell has failed to place before this Court any cognizable legal theory upon which it could be successful in this case. Accordingly, Defendant shall be granted summary judgment dismissing the complaint.
In addition, the court may impose sanctions for frivolous conduct. 22 NYCRR 130-1.1. Frivolous conduct is defined as conduct which is completely without merit in law or which cannot be supported by a reasonable argument for the extension, modification or reversal of existing law, conduct with is taken primarily to harass another or the assertions of material facts [*4]that are false. See, 22 NYCRR 130-1.1(c)(1),(2) and (3).
The commencement of this suit well appears to be frivolous conduct. The suit has no basis in law. As discussed above, the law in New York is abundantly clear. A child is not responsible to pay for medical treatment provided to a parent in the absence of a written agreement whereby the child undertakes that responsibility. Grandell has not produced a written agreement wherein Charles agreed to pay the charges incurred by Patricia
This suit may have been instituted to harass Charles inasmuch as he had no legal obligation to pay his mother's expenses. He did not sign an agreement obligating him to do so. A suit commenced with no basis in law may very well be harassment.
Finally, both the complaint and affidavit of merit contain material statements of fact that are patently false. The complaint is verified by Liebel Rubin, Grandell's Vice President. A verification is a statement under oath. CPLR 3020(a). The complaint alleges that Grandell "...sold and delivered certain goods, wares and merchandise" to the Defendant. This action is clearly not one for goods sold and delivered; and certainly not to Defendant, in any case. The complaint further alleges that Grandell "...rendered work, labor and services" to the Defendant. This, too, is false. This is an action to recover for cost incurred by Patricia while a patient at Grandell.
These misstatements of material fact are compounded by the averment in the affidavit of merit of Solomon Rubin, the controller of Grandell which states, "That prior to the commencement of this action, bills and, or statements of account were sent to the Defendant for the amount owed by Defendant to Plaintiff...for the medical expenses of the minor child." This statement is undeniably false. This action relates to services rendered to Patricia, whose Application states that she was 72 years of age having been born on June 21, 1928. The same application list Charles as her son. Grandell and its attorney cannot possibly claim that they did not know that Patricia was an adult or that Charles was her son.
It is clear that Plaintiff and/or its counsel have demonstrated a callous and reckless disregard for the truth and the law. Sanctions appear to be more than appropriate. However, sanctions cannot be imposed without a hearing. Haddad v. Haddad, 272 AD2d 371 (2nd Dept. 2000); Greystone Staffing, Inc. v. Vincenzi, 7 Misc 3d 1024 (A) (Sup. Ct. Nassau Co. 2005); and 22 NYCRR 130-1.1(d).
Accordingly, it is,
ORDERED, that Plaintiff's motion for summary judgment is denied; and it is further,
ORDERED, that, on the Court's own motion, summary judgment dismissing the complaint is hereby granted to the Defendant pursuant to CPLR 3212(b). The complaint is hereby dismissed; and it is further,
ORDERED, that counsel for Grandell and an officer of Grandell are directed to appear before this Court, on January 6, 2006 at 9:30 a.m. to show cause why sanctions should not be imposed upon Grandell and/or its attorneys.
This constitutes the decision and Order of the Court.
Dated: Mineola, NY _____________________________
November 29, 2005 Hon. LEONARD B. AUSTIN, J.S.C.
[*5]
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