Morningside Acquisition I, LLC v Collier

[*1] Morningside Acquisition I, LLC v Collier 2018 NY Slip Op 51289(U) Decided on August 28, 2018 Civil Court Of The City Of New York, Bronx County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2018
Civil Court of the City of New York, Bronx County

Morningside Acquisition I, LLC, d/b/a Morningside Nursing and Rehabilitation Center as Successor to Morningside House Nursing Home Company, Inc., Plaintiff,

against

Patricia Collier, Defendant.



CV-21184-17



Plaintiff's Attorney:

Angela C. Bellizzi, Esq.

225 Crossways Park Drive, Woodbury, NY 11797

Phone:(516) 224-5087

Defendant's Attorney:

Anne Nacinovich, Esq.

Legal Services NYC- Bronx

349 E 149th Street, 10th Floor, Bronx, NY 10451

Phone:(718) 928-3671
Brenda Rivera, J.

Recitation of papers received on this Motion dated May 31, 2018 and submitted on August 9, 2018:

Papers Numbered

Motion 1

Opposition 2

Reply 3

The Plaintiff commenced this action against the Defendant seeking damages for services rendered, breach of contract and unjust enrichment in the amount of $8,360.00, arising from room, board and nursing care services allegedly rendered to the Defendant. The Plaintiff moves this Court to issue an order pursuant to CPLR § 3212 granting summary judgment in its favor on the grounds that the Plaintiff has standing to sue on the contract between the Defendant and Morningside House Nursing Home Company, Inc. or in the alternative on the grounds of implied contract and unjust enrichment.

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Summary judgment is inappropriate in any case where there are material issues of fact in dispute, or where more than one conclusion may be drawn from the established facts. Id. In considering a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw every available inference in the non-moving party's favor. De Lourdes Torres v. Jones, 26 NY3d 742 (2016); William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470 (2013). An award of summary judgment deprives a litigant of a party's day in court, and as such, is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. Bonaventura v. Galpin, 119 AD3d 625 (2nd Dept. 2014); quoting Andre v. Pomeroy, 35 NY2d 361 (1974). Thus, a proponent for summary judgment bears the heavy burden of demonstrating that the cause of action or defense is sufficiently proven to warrant the court in awarding judgment as a matter of law in the moving party's favor. Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 (2014); CPLR 3212(b). If the moving party makes out a prima facie showing, the burden then shifts to the non-moving party to submit proof in admissible form establishing the existence of material issues of fact that preclude judgment as a matter of law. See Jacobsen, 22 NY3d 824; See also Kershaw, 114 AD3d 75.

A review of the papers submitted indicate that there are issues of fact precluding summary judgment. Specifically, Plaintiff has failed to establish through admissible evidence that there was an assignment of contract from Morningside House Nursing Home Company, Inc. to Morningside Acquisition I, LLC d/b/a Morningside Nursing and Rehabilitation Center or that the two have merged, giving the Plaintiff's standing to sue for services provided to the Defendant pursuant to a contract with Morningside House Nursing Home Company, Inc.

As a general rule, the performance and acceptance of services can give rise to an inference of an implied contract to pay for the reasonable value of such services. Moors v Hall, 143 AD2d 336 (1988); Weis v Selected Meat Packers, 91 AD2d 1085 (1983 ). The existence of an implied contract to pay for services is a question of fact and the result often depends upon the credibility given to the testimony of the respective witnesses. JP Plumbing Corp. v. Byrne, 38 Misc 3d 135(A) (NY Sup. App Term 2013). Additionally, the Plaintiff's claims for breach of an implied contract and unjust enrichment are quasi-contract claims and "[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter." See Segal v. Cooper, 95 AD3d 545 (1st Dept. 2012); citing Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 NY2d 382 (1987). Here, the Plaintiff argues that, pursuant to the Admission Agreement, the Defendant undertook duties and obligations with regard to facilitating payment on her account. Where the Plaintiff argues that the parties' responsibilities are governed by the Admission Agreement, it may not recover under quasi-contractual theories. See Segal, 95 AD3d 545. Thus, the issue of whether the Plaintiff and the Defendant are bound by the subject contract must be resolved prior to the determination of whether a contract can be implied.

In light of the foregoing, the Plaintiff' motion for summary judgment is denied.

Dated: August 28, 2018

Hon. Brenda L. Rivera, J.C.C.