Sherman v Wontrobski

[*1] Sherman v Wontrobski 2006 NY Slip Op 50801(U) [11 Misc 3d 1090(A)] Decided on May 4, 2006 Supreme Court, Nassau County Phelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2006
Supreme Court, Nassau County

Robert Sherman, Commissioner of the Department of Social Services of the County of Nassau, Plaintiff,

against

Adolph Wontrobski, Defendant.



017225/04



Michelle M. Faraci, Esq.

Attorney for Plaintiff

Nassau County Department of Social Services

60 Charles Lindbergh Blvd., Suite 160

Uniondale, NY 11553-3686

Freedman Fish & Grimaldi, LLP

Attn: Daniel G. Fish, Esq.

Attorneys for Defendant

521 Fifth Avenue, 25th Floor

New York, NY 10175

Thomas P. Phelan, J.

The motion by plaintiff, Robert Sherman, Commissioner of the Department of Social Services of the County of Nassau [hereinafter referred to as "DSS" or "Department"], for an Order of this Court, pursuant to CPLR 3025(b): (1)adding as parties defendants John Wontrobski, Jane Nelson, Theresa Wontrobski, Stephen Wontrobski and Helen Tabone;

(2) amending the title of this action to read:

John Imhof, Ph.D, Commissioner of the Department of Social Services of the County of Nassau,

v.

Adolph Wontrobski, individually; and John Wontrobski and Jane Nelson, co-trustees, beneficiaries and individually; and Theresa Wontrobski, Stephen Wontrobski and Helen Tabone, as beneficiaries and individually; and [*2]

(3)amending the Complaint as set forth in the proposed Amended Complaint;

is granted.

By this action, the Commissioner of the Department of Social Services of the County of Nassau seeks reimbursement for the Medicaid benefits paid on behalf of Jane Wontrobski as the institutionalized spouse of defendant Adolph Wontrobski.

Plaintiff, DSS, alleges that defendant Adolph Wontrobski is liable for a spousal refusal contribution for his wife's medical expenses incurred while she was a resident at Parker Jewish Geriatric Center from on or about January 1, 2000 through October 17, 2004.

Jane Wontrobski applied for Medicaid on or about January 18, 2000. On or about December 2, 1999, defendant, Adolph Wontrobski, expressly refused to provide for his wife's care by signing a "Declaration of the Legally Responsible Relative" which stated that he refused to make his income and/or resources available for his wife's medical care.

Pursuant to the Social Services Law §366[3][a], the community spouse becomes obligated under an implied contract theory to pay the cost of the support of the institutionalized spouse at the time the community spouse refuses to make his/her income and or resources available to provide care for the institutionalized spouse (Commissioner of Dept. of Social Services of City of New York v. Fishman, 280 AD2d 396, 398 [1st Dept., 2001]; see also Commissioner of Dept. of Social Services of the City of New York v. Spellman, 243 AD2d 45, 48 [1st Dept 1998]).

Plaintiff's claims against defendant Adolph Wontrobski as found in the original complaint are clearly premised upon the implied contract theory pursuant to which defendant's spousal liability accrued at the time he refused to support his institutionalized spouse.

By this motion, amendment is sought to reflect that in March, 2006 Robert Sherman was replaced by John Imhof, Ph.D. as Commissioner of the Department of Social Services of the County of Nassau. In addition, amendment is sought to reflect various transfers in real and personal property that defendant engaged in approximately two years after accrual of his contractual obligation to pay the cost of his wife's support.

More specifically, on November 4, 2002 Adolph Wontrobski, as the grantor, transferred his assets to an irrevocable trust that named his son, John Wontrobski, and daughter, Jane Nelson, as co-trustees. Plaintiff now alleges that defendant established the irrevocable trust with the intent to defeat plaintiff's claim for recovery of Jane Wontrobski's medical expenses.

In addition to transferring his personal property, defendant also transferred real property to his children, two years after the date of his wife's application to Medicaid. Apparently, when Jane Wontrobski applied to Medicaid in January 2000, defendant Adolph Wontrobski was in sole possession of the real property located at 1 Brokaw Avenue, Floral Park, New York. On November 4, 2002, the same day that he transferred his personal assets to the irrevocable trust, defendant also transferred his interest in 1 Brokaw Avenue to his children, namely, John [*3]Wontrobski, Jane Nelson, Theresa Wontrobski, Stephen Wontrobski and Helen Tabone.

Defendant also transferred his real estate interest in his primary residence located at 7 Brokaw Avenue, Floral Park, New York, to his children on November 4, 2002, retaining only a life estate interest for himself. Although defendant's primary residence at 7 Brokaw Avenue is an exempt resource during his lifetime (see Social Services Law §369(2); Matter of Estate of Craig, 82 NY2d 388 [1993]), this residence would be a reachable asset in Adolph Wontrobski's estate if he were to pass away before reimbursing plaintiff for his wife's medical expenses. "Recovery for medical assistance from the estate of the secondarily deceased spouse can only be had on proof that such spouse, at the time of the furnishing of the medical assistance, was a financially responsible relative in that he or she had sufficient income and resources to provide medical assistance" (see Matter of Conroy, 201 AD2d 855, 855 [3rd Dept 1994], citing Matter of Craig, supra).

Pursuant to CPLR § 3025(b), a party is allowed to amend or supplement his pleadings by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties (CPLR 3025[b]).

A motion for leave to serve an amended complaint should be granted in the absence of prejudice or surprise resulting from delay (Fahey v. County of Ontario, 44 NY2d 934 [1978]; Northbay Construction Co., Inc. v. Bauco Construction Corp., 275 AD2d 310 [2nd Dept. 2000]; see also CPLR 3025[b]). "Leave to amend a pleading should be freely given (see CPLR 3025(b)), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (see, Fahey v. County of Ontario [supra]" (Ruby Land Development Ltd. v. Toussie, 4 AD3d 518, 519 [2nd Dept., 1004]).

Amendment of the pleadings in this action to permit addition of defendants and substitution of John Imhof, Ph.D. as Commissioner of the Department of Social Services of the County of Nassau is granted.

The new information set forth in paragraphs 30 through 42 of the proposed amended complaint is critical to the survival of the newly proposed third and fourth causes of action, as it gives the context and detail of the alleged fraudulent transfers and cites to the relevant provisions of the Debtor and Creditor Law provisions including sections 273, 275 and 278 which are the subject of those causes of action. There can be no prejudice to defendants as the new details concern plaintiff's claims for reimbursement to the extent of the value of the trust assets and transferred real property, plaintiff's request for an accounting to determine how much of the trust principal the co-trustees and/or the beneficiaries received and plaintiff's request to set aside the transfers in real and personal property.

Moreover, notwithstanding defendant's reliance on such cases as Matter of Tumeck, AD3d , 2006 NY App. Div. LEXIS 2659 [3rd Dept.], it cannot be said that the two newly proposed causes of action are patently devoid of merit. Unlike the circumstances in Matter of Tumeck, [*4]supra, it has not been found that defendant Adolph Wontrobski was without sufficient income and resources to support his institutionalized spouse at the time he executed the spousal refusal.

Plaintiff shall serve its proposed amended complaint upon newly added defendants within 30 days of receipt of a copy of this order from an source. Plaintiff's proposed amended complaint is deemed served upon defendant Adolph Wontrobski.

Consistent with the foregoing, the title of this action is amended to read as follows: "John Imhof, Ph.D., Commissioner of the Department of Social Services

of the County of Nassau,

Plaintiff,

-against- Adolph Wontrobski, individually; and John Wontrobski and Jane Nelson

as co-trustees, beneficiaries and individually; and Theresa Wontrobski,

Stephen Wontrobski and Helen Tabone, as beneficiaries and individually,

Defendants."

This decision constitutes the order of the court.

Dated: MAY 4, 2006 Thomas P. Phelan

J.S.C. [*5]