Blossom View Nursing Home v Denner

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Blossom View Nursing Home v Denner 2014 NY Slip Op 31734(U) July 3, 2014 Sup Ct, Wayne County Docket Number: 76117/2014 Judge: Dennis M. Kehoe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT: COUNTY OF WAYNE BLOSSOM VIEW NURSING HOIVIE, Plaintiff, -vs ARNOLD DENNER and LINDA CLEVENGER, Defendants EC ISION AND RDER Ind x No. 76 11 7 dio It/Heidi E. LaDuca, Esq. Attorney for Plaintiff Brown, Chiari, LLP James M. Mucklewee, Esq. , of Counsel Attorney for Defendants The Plaintiff Blossom View Nursing Home has move pursuant to CPLR §32 12 for an order grantin!~ summary judgment against the Defendants "on the First, Second, Third and Fourth Cause of Action". (The Court notes that there are actually two (2) separate sectio Complaint, each setting forth four (4) Causes of Action ag inst each respective Defendant. In the interest of judicial economy , he Court will treat this motion as having been made against both Defen ants on all causes of actions). The Defendants have opposed the mo ion in its entirety. Initially, the Court recognizes that counsel for the De endants has raised a number of alleged procedural defects in the Plaint ff' s moving -1- [* 2] papers. The Defendants are correct in stating that an att rney affidavit which is not based on personal knowledge is usually insu cient to support a summary judgment motion; however, CPLR § 105 allows a verified pleading to replace a party affidavit where such is required The ! Defendants also argue that there are certain technical defi iencies in the time limits for the service of motion papers. However, since both parties had sufficient opportunity to submit their respective argum · nts, this Court will address the matter on the me!rits. This action arises from the Plaintiff's claim for money damages allegedly owed by the Defendant Arnold Denner for nursin~ home and health care services he received as a resident of Blossom y iew from October 12, 2012 to May 24, 2013. At the outset, Mr. Dent er refused to sign the Admission Agreement prepared by the nursing hor e. However. the agreement was signed by the Defendant Linda Cleven er, Mr. Denner's daughter, as a "responsible party" on October 12 2012. During Mr. Denner's stay at Blossom View, payments were made oward the charges incurred from Mr. Denner's co-insurance and soci I security benefits. However, the only "private payment" shown on t e final bill is a payment of $89.06, leaving a balance due of $31,318.23, one of wh ich has been paid. -2- [* 3] Counsel for the Defendants points out numerous alleged ambiguities in the language which appears in the contract. The Court 1 akes specific notice of a provision wh ich describes Ms. Clevenger as "a individual with legal access to the funds and resources of Arnold Denner" (emphasis added). However, at the time of his admission to Blossom View, Mr. Denner refused to sign the agreement, and allegedly told is daughter not to pay the nursing home any funds from his private resour es. A representative of Blossom View allegedly strongly advised Ms. Clevenger that Mr. Denner would not be allowed to stay if the agreem nt was not signed. Ms. Clevenger maintains that she then signed the agreement under duress. As to the Plaintiff's motion for Summary Judgment a Defendant Linda Clevenger, the Court denies the Plaintiff' application in its entirety. The agreement clearly states that "a responsi le party shall not be required to use his/her resources for resident care." However, the Court finds that there are factual issues as to whether Ms. levenger violated her alleged responsibility under the terms of the c ntract to use the resident's personal resources to meet all other obligati ns arising out of this agreement. The Defendants have raised triable issue regarding the use of duress in obtaining Ms. Clevenger' s si nature, and -3- [* 4] more important, the authority of Ms. Clevenger to access resources - if such resources exist - for payment of his ex violation of his alleged instructions to her. Ms. Clevenger' liability must await determination at trial. However, Mr. Denner's legal status is different than t at of his daughter. He is not a signatory to the contract. However he did receive and accept nursing home services from Blossom View for a period in excess of seven (7) months. The~ Third Cause of Action a ainst Mr. Denner in the Complaint is based upon a claim of unjust et ichment. In order to recover under a theory of unjust enrichment, a pla ntiff must establish that: a) the other party was enriched; b) at the pl intiff's expense; and c) that it is against equity and good conscience to per it the other party to retain what is sought to be recovered. (See, e.g. evin v Kitsis, 82 AD3d 1051 (2nd Dept, 2011 )). Contrary to the Defendant's contention, the fact that the Plaintiff has alleged the existence of a viable ontract does not prevent the nursing home from asserting a claim for unjust enrichment in the alternative. Therefore, the Court hereby awards the Plaintiff parti · I summary judgment on the Third Cause of Action against Arnold Den er on the Plaintiff's claim of unjust enrichm1~nt. However, the motion is granted only -4- [* 5] as to the issue of Mr. Denner's liability for payment of the et balance payable to Blossom View, as the Court finds that the Plain iff's papers are insufficient to establish the amount of damages. Therefor ., the question of the sums for which Mr. Denner is liable must be determine simultaneously with the trial of the claims against Ms. Clevenger. This Decision constitutes the Order of the Court. Dated: Lyons, New York . - ~ ;.,: ... c ::u fTl 3: ~ .. > rt"l- - 'c::: I I w -u .. °' .t:>.. -5- Cl c: :::v -.

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