Promenade Nursing Home, Inc. v Lacey
Annotate this CaseDecided on November 29, 2005
Civil Court, Queens County
Promenade Nursing Home, Inc., d/b/a Promenade Rehabilitation and Health Center, Plaintiff,
against
Ambrose Lacey and Anna Lacey, Defendants.
50505/05
Diccia T. Pineda-Kirwan, J.
Upon the foregoing cited papers, it is ordered that the plaintiff's motion for an order, pursuant to CPLR 3215, granting a default judgment against defendants Ambrose Lacey and Anna Lacey, submitted without opposition, is denied.
According to the notice of motion, this action for "implied contract," seeks a default judgment based on defendants' failure to appear and requests an award of actual damages based on documentary evidence, or alternatively, requests that the matter be set down for inquest.
The verified complaint annexed to the motion alleges five causes of action: (1) services rendered, (2) unjust enrichment, (3) fraud, (4) conversion, and (5) the doctrine of medical necessaries. The complaint alleges that plaintiff is a domestic corporation engaged in the business of providing nursing home care, defendant Ambrose Lacey is a patient who resides in plaintiff's nursing home facility, and defendant Anna Lacey is his wife.
Civil Practice Law and Rules 3215 provides for the entry of a judgment upon a defendant's failure to appear or answer so long as a plaintiff submits proof of service of process, proof of the facts constituting the claim and the default, and so long as plaintiff states a viable cause of action. (CPLR 3215; Woodson v Mendon Leasing Corp, 100 NY2d 62 [2003]; Beaton v Transit Facility Corp, 14 AD3d 637 [2d Dept 2005].) To make the determination whether a [*2]cause of action is viable, the court may consider the pleadings in the action, affidavits, or affirmations submitted by the plaintiff. (See Fappiano v City of New York, 5 AD3d 627 [2d Dept 2004].)
Proof of the facts constituting the claim and the amount due may be made either through an affidavit made by the party, or, if a verified pleading has been served, the verified pleading may be used as the affidavit of facts constituting the claim and the amount due. (CPLR 3215 [f]; Goodman v New York City Health & Hosps Corp, 2 AD3d 581 [2d Dept 2003].) If the verified pleading is used to support a motion for a default judgment, it must be made by a party with personal knowledge of the facts. (See Blam v Netcher, 17 AD3d 495 [2d Dept 2005].)
In support of the motion, plaintiff submits an affidavit of service of process, its attorney's affirmation as proof of the default, and, as proof of the facts constituting the claim and the amount due, the verified complaint which is verified by Stanley Spector as an "administrator" for plaintiff.
Civil Practice Law and Rules 3020[d][1] mandates that if a party is a domestic corporation, the verification "shall be made by an officer thereof . . . ." While the statute authorizes that in certain limited circumstances someone other than a party may verify a pleading, such person must explain why the verification is not made by the party. (See CPLR 3020[d][3]; CPLR 3021; Giambra v Commissioner of Motor Vehicles, 46 NY2d 743 [1978].) A pleading that is defectively verified, "shall be treated as an unverified pleading." (CPLR 3022.) Where a pleading is required to be verified, such as a petition in a summary proceeding, defects in a verification are waived if they are not rejected with due diligence. (CPLR 3022; Giambra v Commissioner of Motor Vehicles, 46 NY2d 743, supra.)
There is no indication that Stanley Spector is an officer of plaintiff corporation and there is no reason provided why the verification was not made by the party. Thus, the verification is defective and the pleading is to be treated as an unverified pleading. (CPLR 3022.) Also, the complaint was not required by statute to be verified such that the defects are waivable. (Id.) As a motion for a default judgment requires proof of the facts by affidavit or a verified pleading, neither of which is present here, reading the two statutes together, i.e. CPLR 3215 and CPLR 3020, necessitates a denial of the motion for lack of sufficient factual proof of the claim.
Even if the defect in the verification could be considered waived based on defendants' default in appearing or answering, the motion would nevertheless be denied as the factual allegations in support of the claims are insufficient and contradictory such that plaintiff has failed to demonstrate that the causes of action, as pled, are viable.
The first two causes of action that are asserted against defendant Ambrose Lacey only, sound in quasi contract and are for quantum meruit and unjust enrichment. The complaint [*3]alleges that plaintiff has not been paid for nursing care services it has rendered to defendant Ambrose Lacey, and that it always had the expectation that defendant Ambrose Lacey would pay for those services. There are no facts contained in these causes of action that indicate that plaintiff has been paid at all for said services.
In contrast, the third cause of action, asserted against defendant Anna Lacey and alleging fraud, contains facts intimating that defendant Ambrose Lacey is bound by a written contract pursuant to which plaintiff was paid by Medicaid for some portion of the care rendered to defendant Ambrose Lacey and defendant Ambrose Lacey is required to pay a monthly amount of money in addition to what is paid by Medicaid.
It is well settled that the existence of an enforceable written contract covering the matter at issue precludes recovery for causes of action sounding in quasi-contract. (See Clark-Fitzpatrick, Inc v Long Is RR Co, 70 NY2d 382 [1987].) Thus, if there is a written contract, as it appears from the third cause of action, then plaintiff's first two causes of action are precluded.
The third cause of action alleging fraud against defendant Anna Lacey is also not viable as it lacks the requisite specificity and is made only "upon information and belief." (CPLR 3016) While Civil Practice Law and Rules 3014 allows for pleading in the alternative, without sufficient facts to demonstrate a viable cause of action and without sufficient facts explaining the contradictions in this complaint, a default judgment can not be granted on these first three causes of action.
The fourth cause of action is asserted against defendant Anna Lacey and alleges that she converted co-defendant's funds "intended to be paid to Promenade." Conversion is defined as the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. (See Vigilant Ins Co of Am v Housing Auth., 87 NY2d 36 [1995].) Here, the facts are insufficient to show plaintiff had any ownership rights in the funds of a third-party to this claim for conversion, defendant Ambrose Lacey. Moreover, the tort of conversion applies only to specific chattel, not here shown. (See 9310 Third Ave. Assocs. v Schaffer Food Serv Co, 210 AD2d 207 [2d Dept 1994].)
The fifth cause of action alleges a claim of medical necessaries against Anna Lacey as defendant's spouse. A cause of action for medical necessaries, however, is only viable if the primary debtor, here, Ambrose Lacey, is unable to satisfy the debt out of his own resources. (See Gilberg v Lennon, 212 AD2d 662 [1st Dept 1995]; Medical Bus Assocs v Steiner, 183 AD2d 86 [2d Dept 1992].) In addition, the doctrine of necessaries requires a showing that the necessaries were furnished based on the credit of the spouse and a showing that the amounts alleged to be owed are commensurate with the spouse's means. (See Our Lady of Lourdes Memorial Hospital, Inc. v Frey, 152 AD2d 73 [3rd Dept 1989].) According to facts alleged in the [*4]third and fourth causes of action, defendant Ambrose Lacey has the means to pay the monthly amount that is owed to plaintiff. Further, there has been no showing that the services were offered based on Anna Lacey's credit or that she has the means to pay. Accordingly, plaintiff has not demonstrated that the fifth cause of action is viable.
In view of the above, the motion for a default judgment is denied.
Dated:November 29, 2005_____________________________
DICCIA T. PINEDA-KIRWANJudge, Civil Court
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