Glen-Haven Residential Health Care Facilities, Inc. v Merola
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Glen-Haven Residential Health Care Facilities, Inc. v Merola 2012 NY Slip Op 31133(U) April 18, 2012 Supreme Court, Nassau County Docket Number: 5080/09 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRIALIIS PART 31 GLEN- HAVEN RESIDENTIAL HEALTH CAR FACILITIES , INC. d//a PORT JEFFERSON HEALTH NASSAU COUNTY CAR FACILITY Plaintiff Index No. : 5080/09 Motion Seq. No. : 04 Motion Date: 03/14/12 - against - RAPH MEROLA, JR. , Individually, RALPH MEROLA, JR., as Attorney- in- Fact for Ilene Merola, and RALPH MEROLA , JR. , as Administrator of the Estate of Ilene Merola Defendants. RALPH MEROLA , JR. Third- Par Plaintiff - against - GAIL AUDREY WEBER Third- Par Defendant. The followine papers have been read on this motion: Papers Numbered Notice of Motion Affrmation and Exhibits Affrmation in O osition Reply Affirmation Upon the foregoing papers, it is ordered that the motion is decided as follows: [* 2] Plaintiff moves , pursuant to CPLR 99 1003 and 1009 , for an order granting it leave to add third-pary defendant as a direct defendant; moves, pursuant to CPLR 9 3025(b), for an order granting it leave to serve a Supplemental Sumons and Amended Verified Complaint as to the new par; and moves for an order directing the Clerk of Cour to amend the caption accordingly. Third-par defendant opposes the motion. This action seeks damages arising from the room , board , care and skiled nursing services rendered to Ilene Merola , the mother of defendant/third-par plaintiff and third- par defendant during the period of time from November 18, 2003 , unti her discharge on September 22 , 2004 resulting in a balance due and owing to plaintiff in the sum of $72 , 171. 78. Ilene Merola passed away on November 20 2005. Plaintiff commenced the action by service of a Sumons and Verified Complaint on defendant/third-par plaintiff on or about August 13 , 2008. Plaintiffs claims against defendant/third-par plaintiff arise under the New York State Debtor and Creditor Law (" DCL" ) resulting from the alleged fraudulent transfer of real propert owned by the now deceased Ilene Merola to defendant/third-par plaintiff, as well as the transfer , liquidation and/or receipt of other assets belonging to the decedent as testified by defendant/third-par plaintiff and third-pary defendant during the course of their respective depositions. On December 2 2009 , a Decision and Order was rendered by Nassau County Acting Supreme Cour Justice Daniel Marin which granted in par and denied in par defendant/third- par plaintiffs motion to dismiss so that plaintiff s Second and Third Causes of Action arising under the DCL surived. On or about Februar 18 2010 , defendant/third-par plaintiff interposed an Answer with respect to the remaining claims against him. In or about May 2010 , defendant/third-par plaintiff commenced a third- par action against his sister , Audrey Weber. On or about June 15 2010 [* 3] third-pary defendant interposed an Answer to the third-par Verified Complaint. On or about September 1 2010 , plaintiff moved to add Ralph Merola, Jr. as Administrator of the Estate of Ilene Merola , as a par defendant. Said application was granted in the November 30 2010 Decision and Order of this Cour. Depositions of defendant/third-par plaintiff and third-par defendant were conducted on November 12 2010. On or about Januar 31 2011 , an Answer to the amended pleadings was received from defendant/third-par plaintiff. Plaintiff argues that granting ofplaintiffs conference (sic) (i)n the case at bar, there would be no prejudice to the paries by the motion to the extent that the paries have engaged in numerous Cour with Your Honor regarding the varous transfers , liquidation and/or receipt by the Defendant/Third- Par Plaintiff and Third-Par Defendant of varous ofthe Resident' s assets which serve as a basis for liabilty in ths matter, as well as the fact that based upon the Defendant/Third- Par Plaintiff and Third- Par Defendant's respective deposition testimony..., the assets at issue were split equally between the Defendant/Thrd- Par Plaintiff and Third- Par Defendant , as the Resident's only children. Thus , the Plaintiff has the same claims against the Third- Par Defendant in this matter as it has against the Defendant/Third-Par Plaintiff herein concerning the transfer , liquidation and/or receipt of the Resident' s assets under the Debtor and Creditor Law (" DCL" ) 99 270 , 273 , 275 , 276 et.seq. To the extent said assets , inclusive of the Resident's aforestated real propert and various other assets as testified by the Defendant/Third- Par Plaintiff and Third-Par Defendant during the course of their depositions... , were transferred and/or liquidated for little or no consideration rendering the Resident and/or her estate insolvent as a result thereof, then the Plaintiff has valid claims against both the Defendant/Thrd- Par Plaintiff and Third-Par Defendant arising under the DCL." ," [* 4] In opposition to plaintiff s motion, third-par defendant argues that there is no question that adding her as a main defendant is severely prejudicial. Third-par defendant first asserts that an action of fraudulent transfer has a statute of limitations period of six years from the time of the purorted transfer. The Third Par Defendant CANNOT have a claim brought against her when the time has elapsed. The alleged fraudulent transfer of the real propert occured on about 2003. The alleged fraudulent transfer of any other properties also occured in excess of the six year statute of limitations. Since the Third Par Defendant was not brought into this case until after the statute of limitations had elapsed , she CANNOT be brought into this action as a Defendant in the overall action. " Third- Par Defendant then argues that " it would be highly prejudicial to the Third Par Defendant if she were to be added as a Defendant in ths matter. a Third Par Defendant, in the event the Plaintiff were successful in their litigation in ths matter, they would have sole recourse against the Defendant. If the Third Par Defendant were to be added they would have recourse against her directly instead of having to deal simply with the Defendant. In American Home Assurance Co.. cited by Plaintiff, the cour granted leave amend the caption, but in that case, the defendant , and the proposed defendant sought to be added were interrelated companies (both being par of the AIG insurance group). In the instat case defendant , RALPH MEROLA and the third par defendant , GAIL AUDREY WEBER, are totally distinct entities. Third-par defendant adds that the Plaintiff has been aware of the Third Par Defendant for a significant period of time and should have brought this action against her a long time ago if they felt they had cause. Once again , the prejudice of this is untenable and not within the realm of the intent of the statute to allow amendments to the pleadings. In essence the entire defense of this proceeding would be altered if this were allowed. [* 5] In reply to third-par defendants ' opposition , plaintiff argues that " (a)s for any claim as to the expiration of the statute of limitation , counsel once again conveniently neglects the fact after that the transfers and/or liquidation of the Resident's assets did not occur until the Resident's demise in November , 2005 , and without knowledge by the Plaintiff as to the precise dates thereof since it was not provided with discovery relative thereto. As such , the Third- Par Defendant canot have it both ways. She canot claim the statute of limitation as a basis for precluding Plaintiff from amending its pleadings to include claims concerning the liquidation of the Resident's assets which ultimately rendered the Resident' s estate insolvent and unable to pay the existing debt to Plaintiff, while at the same time claiming a lack of knowledge as to what assets and/or when said assets were liquidated. Plaintiff fuer submits that " (i)n any event , the statute of limitations would nonetheless (sic) relate back' to the commencement of Plaintiffs Defendant/Third- Part Plaintiff in July, 2008.... The original claims against the relation back doctrine requires proof that (1) the claims arise out of the same conduct , transaction , or occurence , (2) the new par is united in interest with the original defendant , and by reason of the relationship can be charged with such notice of the institution of the actions and that the new par wil not be prejudiced in maintaining its defense on the merits , and (3) the new par know or should have known that, but for a mistake by plaintiff as to the identity of the proper paries, the action would have been brought against that par as well.. .In the instant case , the requirements of the relation back doctrine are satisfied. Generally, leave to amend a pleading should be freely granted. par seeking such amendment must demonstrate a proper basis for same. 168 A. D.2d 355 563 N. See CPLR 9 3025(b). The See Wieder v. Scala 2d 76 (lst Dept. 1990). Such an application must be supported by an [* 6] affdavit that the proposed amendrnent is meritorious. v. Suna Realty Co. S.2d 434 (lst Dept. 2005). A motion for leave to serve an amended 3d 352 , 797 N. 18 A. See Zaid Theatre Corp. pleading wil only be denied where the prejudicial to the non-moving par. amendment is wholly devoid of merit or is significantly v. See Norman Ferrara 107 AD.2d 739 , 484 N. (2d Dept.985). The merits of the proposed amended pleading wil Id. at insufficiency or lack of merit is clear and free from doubt." 2d 600 not be reviewed " ... unless the 740 , 741. Mere lateness is not a barier to the amendment. In the absence of signficant prejudice the cour will not deny a delayed application for leave to amend a pleading. Lateness combined with significant prejudice to the non-moving paries is required in order to defeat the motion. v. Co., Inc. City of New York 60 N. Y.2d 957 , 471 N. See Edenwald Contracting S.2d 55 (1983). Where an action has been certified ready for trial , judicial discretion in permitting the amendment of a pleading should be discreet , circumspect , prudent , and cautious. Cleaners, Inc. 891 N. v. Dept. 1993); Pellegrino (2d Dept. 1991); Symphonic Electronic Corp. 68 AD.3d 792 American International Specialty Lines Insurance Company, Evans 2d 127 (2d Dept. 2009); Yavorski v. v. Kringstein 193 AD.2d 714 598 N. Dewell 288 AD.2d 545 , 732 N. v. S.2d 64 (2d 177 AD. 2d 554 576 N. Y.S.2d New York City Transit Authority, v. See American 154 S.2d 263 (3d Dept. 2001); Audio Devices, Inc. 24 A.D.2d 746 , 263 N. S.2d 676 (pt Dept. 1965). With respect to the timing of plaintiffs request to have the third-par defendant made a defendant in the main action , the Court notes several significant dates prior to said application. In or about May 2010 (almost two years ago), defendant/thrd-pary plaintiff commenced a third- par action against third-par defendant. This is obviously the point in time when plaintiff was made aware of the alleged involvement of the third- par defendant. In September 2010 , after [* 7] knowing for approximately four months of the third-par defendant' s alleged involvement plaintiff filed a motion to amend the Sumons and Verified Complaint by adding Ralph Merola Jr., as Administrator of the Estate of Ilene Merola, as a par defendant. Plaintiff did not, at that time , move to add the thid-part defendant as a defendant in the main action. On November 12 2010 (almost a year and a half ago), the Examinations Before Trial of defendant/thrd-par plaintiff and third-par defendant took place. Plaintiff now uses said testimony, that, as previously mentioned , was obtained approximately a year and a half ago , as a basis for the instant motion to add the third-par defendant as a defendant in the main action. It is now, after the case had been scheduled for trial for four months before was taken off the tral calendar due to a stipulated vacatu of the Note ofIssue , that plaintiff makes this delayed application. For the past two years , the third- par defendant has been proceeding on a different theory of the case than she would have been had she had been a named defendant in the main action. The Cour finds that to name her as a par defendant at this juncture would be significantly prejudicial to her. It is evident that plaintiff was well aware , for approximately two years , of the third- par defendant's existence and her alleged involvement in the finances of her deceased mother. Furhermore , with respect to the statute of limitations argument , the Cour does not find that the requirements of the relation back doctrine have been satisfied in this case. The Cour does not find that the third-par defendant by reason of her sister- brother relationship can be charged with notice of the institution of the action. Plaintiff brought suit against defendant/third- par plaintiff in 2008. It was not until two years later that the third-par action was commenced. Additionally, it was defendant/third- par plaintiff who received the invoices from plaintiff with respect to his mother s care at plaintiffs facilty and it was plaintiff who was Attorney- in- Fact for his mother , as well as Administrator of her estate. There is no evidence that third-par [* 8] defendant had any knowledge of the alleged debt to plaintiff and therefore should have had notice of the institution of the action. Simply being in a brother-sister relationship does not unite defendant/third- par plaintiff and third-par defnedant in interest. Plaintiffs claim that , since third-pary defendant is the sister of defendant/thrd-par plaintiff, third-par defendant had notice of the commencement ofplaintiffs action is purely speculative and lacks merit. The Court also finds that there is no evidence that thrd-par plaintiff knew or should have known that, but for a mistake by the plaintiff as to the identity ofthe proper paries , the actions would have been brought against her as well. In fact, there is no allegation whatsoever that there was a mistake by plaintiff as to the identity of the proper paries. In fact , plaintiff moved to amend the Sumons and Complaint to make sure that the proper par of "Ralph Merola, Jr. , as Administrator of the Estate of Ilene Merola" was added. Furhermore , plaintiff admits in its reply affirmation that " Plaintiff did not lear of the distribution and/or liquidation of other assets belonging to the Resident until depositions of the paries were conducted on November 12 2010. (emphasis addded)" Nevertheless , despite learing this information on that date, plaintiff waited approximately a year and a half to make the instant motion. The Cour finds that the significant delay in bringing the instant application severely prejudices the third-par defendant. Therefore , the Cour finds not only that the third-par plaintiff would be severely prejudiced ifplaintiffs instant application was granted , but also finds that the applicable statute of limitations (even if using the commencement date of 2005) has ru therefore preventing third- par defendant from being brought into the main action. Accordingly, the Court , in exercising its discretion , holds that plaintiffs motion , pursuant to CPLR 99 1003 and 1009 , for an order granting it leave to add third-par defendant as a direct .// (? , .. [* 9] defendant; pursuant to CPLR 9 3025(b) for an order granting it leave to serve a Supplemental Summons and Amended Verified Complaint as to the new par; and for an order directing the Clerk of Cour to amend the caption accordingly is hereby DENIED. All paries shall appear for a Trial Recertification Conference in Nassau County Supreme Cour , Differentiated Case Management Par (DCM) at 100 Supreme Cour Drive , Mineola, New York , on April 26 , 2012, at 9:30 , This constitutes the Decision and Order of this Cour. ER: / DENISE L. SHER, A. Dated: Mineola, New York April 18 , 2012 ENTERED APR ee 20 2012 NAII'U COUNTY CLIRK" OfFICE
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