Preview
(FILED: NEW YORK COUNTY CLERK 0172172015 09:19 PM INDEX NO. 161001/2014
NYSCEF DOC. NO. 20 RECEIVED NYSCEF 01/21/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ee tt ee eee nee ene en ne ne nnananenennnensennennensensnnnense
JEWISH HOME LIFECARE, Index No. 161001/2014
Plaintiff,
-against-
MARK AST, ERNEST AST and
FIDUCIARY for THE ESTATE OF BETTY AST,
Defendant(s).
mentee ene teen eee eee eee neem nnenennmenmennenee,
REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
COMPLAINT IN ITS ENTIRETY AND FOR SUMMARY JUDGMENT
COHEN, LABARBERA & LANDRIGAN, LLP
Attorneys for Defendants, MARK AST AND ERNEST AST
40 Mathews Street, Suite 203
Goshen, New York 10924
(845) 291-1900
-1-
1) PRELIMINARY STATEMENT
As an initial matter, the assertions made by Defendants in support of the motion for
summary judgment must be treated as wholly uncontroverted as Plaintiff has not provided
evidence from a person with personal knowledge. Plaintiff only provides the affirmation of
counsel in opposition, who lacks personal knowledge of any of the facts.
“We repeat today a precept frequently stated where the moving party has demonstrated its
entitlement to summary judgment, the party opposing the motion must demonstrate by
admissible evidence the existence of a factual issue requiring a trial of the action or tender
an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation
by counsel alone does not satisfy this requirement.” Zuckerman v. City of New York, 49
N.Y.2d 557, 560, 404 N.E.2d 718, 718 (1980).
Further, Opposition fails to provide any valid response to the simple fact that the instant
action must be dismissed as Plaintiff is suing Mark Ast and Ernest Ast in their individual
capacities pursuant to a contract which unequivocally states that Mark Ast and Ernest Ast will
never be held personally responsible, and that if any such personal guarantee existed, it would be
in violation of Federal Law. The balance of the scattershot complaint contains facially deficient
and redundant causes of action prohibited by the plain terms of the contract and well settled
Federal and New York state law. Indeed, the action is so facially deficient and lacking in any
merit that sanctions are clearly warranted.
1) ARGUMENT REGARDING MOTION TO DISMISS
A) The Cause of Action for a Breach of Contract is Expressly Forbidden by the
Unambiguous Language of the Contract and the Action is Brought Against the
2-
Wrong Parties
Plaintiff's Opposition to the motion to dismiss provides absolutely no basis for allowing
the instant action to continue. Absolutely nowhere in the contract does it provide that Mark Ast
or Ernest Ast personally guarantee for any costs associated with services provided to Betty Ast.
In fact, the contract specifically states that:
“Unless the Responsible Party is otherwise obligated by law to pay for the
Patient/Resident's care, as the Patient/Resident’s spouse may be, the Responsible
Party is not required to use his/her personal resources to pay for such care.”
Paragraph 16 and 17 of Plaintiff's Opposition Affirmation by Counsel is thus completely
false and blatantly misrepresents the terms of the contract”. The fact that the contract refers to
Mark Ast and Ernest Ast as “Responsible Parties” has absolutely nothing to do with personally
guaranteeing to answer for the debts of another person.
Further, Plaintiff's cited case of Daughters of Sarah Nursing Home Co., Inc. v. Lipkin,
145 A.D.2d 808, 535 N.Y.S.2d 790, (3 Dept.,1988) does not support Plaintiff's position, as the
contract at issue in the Lipkin case included a provision in the agreement where the “Responsible
Party” agreed to pay for services. This is not the case in the instant matter, where the contract
expressly disclaims any such personal guarantee.
In addition, even if the contract actually had a provision requiring a personal guarantee,
'The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast.
"It is noteworthy and telling that Plaintiff does not bother to cite to any provision of the
contract which would suggest a personal guarantee was made.
3.
which it does not, such a provision would be in violation of 42 USC Section 1396r(c)(5)(A)(ii)°,
which states:
“With respect to admissions practices, a nursing facility must not require a third party
guarantee of payment to the facility as a condition of admission (or expedited
admission) to, or continued stay in, the facility” (emphasis added)
Plaintiff's opposition fails to explain how the instant action may be maintained despite
this Federal Law. In fact, the federal statute stated by Plaintiff in response only further supports
the Defendant’s case that Mark Ast and Ernest Ast cannot be held personally responsible for
services provided to another by a nursing facility. 42 USC Section 1396r(c)(5)(B)(ii) states:
“(ii) Contracts with legal representatives Subparagraph (A)(ii) shall not be construed as
preventing a facility from requiring an individual, who has legal access to a resident’s
income or resources available to pay for care in the facility, to sign a contract (without
incurring personal financial liability) to provide payment from the resident’s income or
resources for such care” (emphasis added)
This provision is clear, no personal guarantee or liability on the part of people responsible
for nursing facility patients can be included in a nursing home agreement. Federal law prohibits
the instant action in addition to the clear language of the contract.
Thus, quite simply, Plaintiff has no legal basis to sue Mark Ast or Ernest Ast in their
individual capacities. Plaintiff would only be able to theoretically able to sue the Estate of the
decedent, which does not currently exist, has not been joined in the action, and is not even
included a party to the action. The caption identifies “Fiduciary for The Estate of Betty Ast” as a
party, and does not designate any representative capacity on behalf on any estate. Further, there
can be no fiduciary for estate which does not exist.
Further, Plaintiff argues, as a result of the facially deficient Complaint, that all allegations
*The Defendants January 6, 2015 Memorandum of law misidentified this statute as 42
USC Section 1396(c)(5)(A).
-4.
must be afforded every favorable inference on a motion to dismiss (paragraph 20) and that
Plaintiff must be afforded discovery in order determine if they have a valid claim (paragraph 2)
However, “On motion to dismiss, even though the pleaded facts are presumed true and
accorded the most favorable inference, allegations consisting of bare legal conclusions... will not
be given such consideration. Gelbman v. Valleycrest Production, Ltd., 189 Misc.2d 403, 732
N.Y.S.2d 528. (New York County, 2001). Quite simply, Plaintiff's complaint consists solely
of bare legal conclusions and a fabricated personal guarantee contradicted by the contract itself,
which was further never signed by Mark Ast.
Further, stating no discovery has taken place is completely irrelevant to a Motion to
Dismiss under CPLR 3211, which is determined solely on the pleadings for the action.
B) Numerous Duplicative and Improper Restatements of the Exact Same Invalid
Contract Action in the Guise of Other Causes of Action are All Improper for a
Multitude of Reasons Beyond Their Redundant Nature. The Shotgun Shell
Approach is to Mask the Obvious Deficiencies of the Contract Claim
Likely aware of the invalid nature of the first cause of action under written contract,
Plaintiff then attempts to mask this claim under the guise of numerous other causes of action
which are all redundant of the contract claim and all suffer numerous fatal flaws.
Second Cause of Action - Oral Contract
The second cause of action simply restates the same claim as the written contract,
claiming a personal guarantee was made orally by Defendants. Even if this false claim were true,
it would not be a valid claim for the same reasons why the written contract claim may not be
“A fact which is uncontroverted by Plaintiff.
5.
maintained. Further, this oral contract claim of a personal guarantee would violate the New York
Statute of Frauds N.Y. Code Section 5-701, which declares all agreements to answer to the debt
of another be in writing, or else they are void.
Plaintiff's opposition does not even attempt to respond to the implications of the statute
of frauds on their claim of a oral contract of a personal guarantee.
Third Cause of Action- Quantum Meruit and Unjust Enrichment
Ignoring the poor drafting of listing two separate causes of action under Plaintiff's
Claimed Third Cause of action, Plaintiff may not proceed under either a quantum meruit claim or
an unjust enrichment claim.
Despite the Defendant’s arguments that the Quantum Meruit claim is an improper and
redundant restating of a written contract claim, Plaintiff's opposition does not make any
argument responding to the point other than to make a conclusory statement that the cause of
action is “viable.” based upon well established New York and Federal law, which Plaintiff does
not bother to identify. (Paragraph 25 of Plaintiff's Counsel Affirmation). Essentially, Plaintiff
did not even respond to Defendants arguments to dismiss the quantum meruit claim.
Similarly Plaintiff makes absolutely no counter-argument regarding the redundancy of the
claim for an unjust enrichment. Plaintiff then claims that Defendants Mark Ast and Ernest Ast in
fact benefitted for services provided to Betty Ast. However, this argument seems to treat a
mother and her sons as the same entity. This benefit that was received by Mark Ast and Ernest
Ast was that “it pleased them to see their mother receive... care from plaintiff's nursing facility.”
Apparently the benefit which Plaintiff conferred upon Mark Ast and Ernest Ast which is being
unjustly retained and must be returned to the Plaintiff is warm feelings. Any services allegedly
-6-
provided by Plaintiff were provided to Betty Ast, who is the person who received any benefit of
these services. In any event, a claim for unjust enrichment cannot be made as the contract
explicitly prohibits holding Mark Ast or Ernest Ast individually responsible for any claimed
charges.
Fourth Cause of Action - Conversion of Assets
Plaintiff's opposition arguments regarding their fourth cause of action lack any basis in
law and Plaintiff appears to have invented a new cause of action. Paragraph 28 of the Opposition
Affirmation by Plaintiff's Counsel claims that “When property belonging to another is entrusted
in the hands of another, pursuant to agreement or position of trust, the wrongful conversion of
such property by the individual in the trusted position will be liable for fraudulent conversion.”
However, Plaintiff fails to cite any case law in support of this claim, as their simply is no
cause of action for “fraudulent conversion” recognized in the state of New York. Plaintiff has
apparently invented a novel and wholly new cause of action.
Even if claiming the cause of action for conversion, which does exist in the state of new
York, Plaintiff made no opposition argument whatsoever which addressed that fact that the
conversion claim is, once again, duplicative of a written contract claim and Plaintiff fails to
identify any duty independent of the contract which was breached.
“The negligence and conversion claims were also properly dismissed because ‘a simple
breach of contract is not to be considered a tort unless a legal duty independent of the contract
itself has been violated.” Superior Officers Council Health & Welfare Fund v. Empire
HealthChoice Ass., Inc., 85 A.D.3d 680, 927 N.Y.S.2d 324 (1st Dept., 2011)
Further, an allegation “upon information and belief” that Defendants are in
-7-
possession of some unidentified assets has no evidentiary value and is not to be afforded
factual deference for a motion to dismiss. See Mandarin Trading Ltd. v. Wildenstein, 17
Mise.3d 1118(A), 851 N.Y.S.2d 71 (Table) (N.Y.Sup.,2007).
Fifth Cause of Action - Fraudulent Conveyance Under Debtor Creditor Law
Yet again, Plaintiff's cause of action for fraudulent conveyance is a redundant restating of
the invalid written contract claim.
The fraudulent conveyance claim only makes legally conclusory claims, “upon
information and belief,” that “all or some” nebulous assets/income were transferred to
some unidentified entity, at some unidentified time in order to prevent payment. These
claims upon information and believe* lack evidentiary value and are not to be afforded
deference on a motion to dismiss. See Mandarin Trading Ltd. v. Wildenstein, 17 Misc.3d
1118(A), 851 N.Y.S.2d 71 (Table) (N.Y.Sup.,2007)
Further, the Complaint does not address the elements for a claim of Fraudulent
conveyance.
“To prevail on such a fraudulent conveyance claim, the movant must establish three
elements: (1) that the conveyance was made without fair consideration; (2) that at the
time of transfer, the transferor was a defendant in an action for money damages or a
judgment in such action had been docketed against him; and (3) that a final judgment has
been rendered against the transferor that remains unsatisfied.” Fischer v Sadov Realty
Corp., 34 A.D.3d 632, 829 N.Y.S.2d 108, (2™ Dept. 2006).
Plaintiff fails to identify any conveyance in the Complaint, and only makes a conclusory
statement that some nebulous conveyance occurred.
Further, there was no action against Mark Ast or Ernest Ast at the time of the mystery
conveyance, nor does Plaintiff even allege there was.
*Statements made by an attorney who lacks personal knowledge.
-8-
Finally, no final judgment has been rendered against Mark Ast or Ernest Ast, and Plaintiff
does not allege such.
Thus, of the three elements to establish a cause of action for fraudulent conveyance,
Plaintiff cannot establish a single one. Quite simply, this is frivolous by the Plaintiff.
Sixth Cause of Action - Constructive Fraud
Plaintiff's Sixth Cause of Action alleging constructive fraud does not even bother to
recite a single element of the claim.
There is absolutely no claim that any material misrepresentation was made. There is
absolutely no allegation of knowledge of falsity. There is absolutely no allegation of detrimental
reliance. In fact, it would be impossible to draft a more legally deficient cause of action for fraud
as absolutely nothing is provided in support of the claim.
In response, Plaintiff only makes a conclusory statement that a “myriad” of wrongdoing
has occurred, but does not bother to actually identify these acts, or tie these acts to the elements
of a constructive fraud claim, or to even bother with a rote recitation of the elements of the cause
of action.
Further, no duty independent of any contract claim is alleged, and the claim is, yet again,
a duplicative restating of the invalid written contract claim.
Seventh Cause of Action - Account Stated
Plaintiff's opposition argues that the debt was not disputed and is not valid. This
opposition completely ignores the arguments made by Defendants that an action for an account
stated cannot proceed where there never was any underlying liability. Further, it is
uncontroverted by anyone with personal knowledge that these debts were absolutely disputed. In
-9-
the instant matter, the written contract states that Mark Ast and Ernest Ast will never be held
personally responsible, and Plaintiff is now suing to hold these individuals personally
responsible.
Eighth Cause of Action - Unidentified Cause of Action Purportedly Against the Estate of
Betty Ast
Plaintiffs opposition argument regarding their wholly unintelligible eighth cause of action
completely ignores that fact that the Estate of Betty Ast is not listed as a party to the action in the
caption. It completely ignores the fact that the Estate doesn’t exist currently. The opposition
further completely ignores the fact that Plaintiff's never served or joined the Estate of Betty Ast.
Il) ARGUMENT REGARDING MOTION FOR SUMMARY JUDGMENT
A) Summary Judgment Generally
The assertions made by Defendants in support of the motion for summary judgment must
be treated as wholly uncontroverted as Plaintiff has not provided evidence from a person with
personal knowledge. Plaintiff only provides the affirmation of counsel in opposition, who lacks
personal knowledge of any of the facts.
“We repeat today a precept frequently stated where the moving party has demonstrated its
entitlement to summary judgment, the party opposing the motion must demonstrate by
admissible evidence the existence of a factual issue requiring a trial of the action or tender
an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation
by counsel alone does not satisfy this requirement.” Zuckerman v. City of New York, 49
N.Y.2d 557, 560, 404 N.E.2d 718, 718 (1980).
B) Regarding Mark Ast Soley
It is completely uncontroverted and there is no dispute that Mark Ast never signed the
contract annexed to Plaintiff's complaint and he never ratified the agreement. Plaintiff only
-10-
states that this fact must be disregarded as it favors the Defendant, which is a nonsensical
argument with any citation to legal authority. Plaintiffs counsel, in the affirmation which lacks
any evidentiary value anyway, does not even dispute the fact. Thus, there never was any written
agreement or meeting of the minds between Mark Ast and Plaintiff and Mark Ast is entitled to
Summary Judgment in Mark Ast’s favor on the written contract claim.
Nothing was asserted in opposition which shows there was a written contract with Mark
Ast. As demonstrated supra, none of the remaining duplicative causes of action asserted in the
complaint are viable against Mark Ast.
Co Regarding Mark Ast and Ernest Ast
Even despite the fact that Mark Ast was never a party to this contract, both Mark Ast and
Ernest Ast are entitled to Summary Judgment as Plaintiff has not presented a single question of
material fact which can overcome the simple fact that the contract explicitly forbids the instant
action seeking liability against Mark Ast and Emest Ast in their individual capacities. As noted
supra, if such a provision was even included in the contract, it would be void as in violation of
federal law.
Such a provision would be in violation of 42 USC Section 1396r(c)(5)(A)(Gi)®, which
states:
“With respect to admissions practices, a nursing facility must not require a third party
guarantee of payment to the facility as a condition of admission (or expedited admission)
to, or continued stay in, the facility”
Plaintiff's opposition fails to explain how the instant action may be maintained despite
°The Defendants January 6, 2015 Memorandum of law misidentified this statute as 42
USC Section 1396(c)(5)(A).
-1l-
this Federal Law. In fact, the federal statute stated by Plaintiff in response only further supports
the Defendant’s case that Mark Ast and Ernest Ast cannot be held personally responsible for
services provided to another by a nursing facility. 42 USC Section 1396r(c)(5)(B)(ii) states:
“(ii) Contracts with legal representatives Subparagraph (A)(ii) shall not be construed as
preventing a facility from requiring an individual, who has legal access to a resident’s
income or resources available to pay for care in the facility, to sign a contract (without
incurring personal financial liability) to provide payment from the resident’s income or
resources for such care” (emphasis added)
This provision is clear, no personal guarantee or liability on the part of people responsible
for nursing facility patients can be included in a nursing home agreement. Federal law prohibits
the instant action in addition to the clear language of the contract.
As such, Defendants Mark Ast and Ernest Ast are entitled to Summary Judgment in their
favor.
Ii) INCORRECT STATEMENTS CONTAINED IN OPPOSITION PAPERS
Defendants must also note several aspects of the Plaintiff's opposition papers which
misrepresent the facts and law.
Paragraph four of the opposition affirmations states that Affidavits must establish their
veracity through the discovery process. This is not the case, as a summary judgment motion
supported by affidavit must be conceded or disputed by affidavits of the opposing party (made by
a person with personal knowledge and not an attorney who lacks personal knowledge). Further,
the summary judgment motion is based upon the affidavits of the Defendants, who have personal
-12-
knowledge, as well as the contract itself, in addition to the pleadings.
Paragraph 7 of the opposition affirmation also misrepresents the terms of the contract at
issue, as no where in the contract does the agreement include a personal guarantee by Mark Ast
or Ernest Ast.
Paragraph 14 contains completely fabricated conversations which do not even identify
which Defendant made the claimed statements, based on the fabrication of an attorney who lacks
any personal knowledge.
Further, Paragraph 3 contains several issues. First, it is never a surprise to an attorney
with any litigation experience that a motion to dismiss will occur prior to discovery, as most
motions to dismiss are filed prior to discovery, and a Defendant has the option to file a motion to
dismiss rather than file a complaint.’ Further, the representation that no conversations regarding
discovery have occurred is simply false, as a preliminary conference was held and a discovery
schedule was set. See Exhibit A to accompanying Counsel Affirmation. However, it should be
noted that the discovery schedule was set to not begin for a period of several months in order to
allow the court to rule on the instant motion prior to discovery beginning. (Reflecting the stay of
discovery which occurs pursuant to CPLR 3214 when a motion to dismiss or a motion for
summary judgment is filed.
V) SANCTIONS SHOULD BE AWARDED
Despite a clear prohibition by federal law and contract, Plaintiff has engaged in frivolous
collection practices against individuals who cannot be held liable as a matter of law. Plaintiff are
"In fact, the undersigned counsel wished to file the instant motion to dismiss rather than
answer to the complaint, but were unable to due to time constraints as Plaintiffs counsel refused
to grant the basic attorney courtesy of an extension to answer or otherwise move, despite the
undersigned firms request for the same.
-13-
suing to hold Mark Ast and Ernest Ast personally responsible pursuant to a contract which states
they are never to be held personally responsible
Plaintiff then engages in a shotgun shell approach of listing numerous causes of action as
duplicate claims of the same invalid contract action. Many of these causes of action do not even
bother to recite the elements of the causes of action, let alone plead facts in support of the same.
The complaint has no basis in law or fact and has resulted in a frivolous waste of the
Court’s time and resources and Defendants time and resources, as well as resulting in legal fees
to defeat the baseless frivolous action by Plaintiff. The Court should impose sanctions.
IV) CONCLUSION
For the above stated reasons, it is respectfully requested that the Court should grant
Defendants’ Motion to Dismiss the Action, and grant Defendant’s motion for summary judgment
in Defendants’ favor. Should the Court decide not to dismiss the action in its entirety or grant
full summary judgment, it is respectfully requested that the Court grant Defendant Mark Ast’s
Motion for Partial Summary Judgment as to the claims against Mark Ast
Dated: Goshen, New York a>
January 21, 2015 Je
LO
By
_ THOMAS "© LANDRIGAN
~ COHEN; ‘LaBARBERA & LANDRIGAN, LLP
Attgrheys Jor Mark Ast and Ernest Ast
¥ Matthews Street, Suite 203
Goshen, NY 10924
T: (845) 291-1900
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Preview
(FILED: NEW YORK COUNTY CLERK 0172172015 09:19 PM INDEX NO. 161001/2014 NYSCEF DOC. NO. 20 RECEIVED NYSCEF 01/21/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ee tt ee eee nee ene en ne ne nnananenennnensennennensensnnnense JEWISH HOME LIFECARE, Index No. 161001/2014 Plaintiff, -against- MARK AST, ERNEST AST and FIDUCIARY for THE ESTATE OF BETTY AST, Defendant(s). mentee ene teen eee eee eee neem nnenennmenmennenee, REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT IN ITS ENTIRETY AND FOR SUMMARY JUDGMENT COHEN, LABARBERA & LANDRIGAN, LLP Attorneys for Defendants, MARK AST AND ERNEST AST 40 Mathews Street, Suite 203 Goshen, New York 10924 (845) 291-1900 -1- 1) PRELIMINARY STATEMENT As an initial matter, the assertions made by Defendants in support of the motion for summary judgment must be treated as wholly uncontroverted as Plaintiff has not provided evidence from a person with personal knowledge. Plaintiff only provides the affirmation of counsel in opposition, who lacks personal knowledge of any of the facts. “We repeat today a precept frequently stated where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement.” Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 404 N.E.2d 718, 718 (1980). Further, Opposition fails to provide any valid response to the simple fact that the instant action must be dismissed as Plaintiff is suing Mark Ast and Ernest Ast in their individual capacities pursuant to a contract which unequivocally states that Mark Ast and Ernest Ast will never be held personally responsible, and that if any such personal guarantee existed, it would be in violation of Federal Law. The balance of the scattershot complaint contains facially deficient and redundant causes of action prohibited by the plain terms of the contract and well settled Federal and New York state law. Indeed, the action is so facially deficient and lacking in any merit that sanctions are clearly warranted. 1) ARGUMENT REGARDING MOTION TO DISMISS A) The Cause of Action for a Breach of Contract is Expressly Forbidden by the Unambiguous Language of the Contract and the Action is Brought Against the 2- Wrong Parties Plaintiff's Opposition to the motion to dismiss provides absolutely no basis for allowing the instant action to continue. Absolutely nowhere in the contract does it provide that Mark Ast or Ernest Ast personally guarantee for any costs associated with services provided to Betty Ast. In fact, the contract specifically states that: “Unless the Responsible Party is otherwise obligated by law to pay for the Patient/Resident's care, as the Patient/Resident’s spouse may be, the Responsible Party is not required to use his/her personal resources to pay for such care.” Paragraph 16 and 17 of Plaintiff's Opposition Affirmation by Counsel is thus completely false and blatantly misrepresents the terms of the contract”. The fact that the contract refers to Mark Ast and Ernest Ast as “Responsible Parties” has absolutely nothing to do with personally guaranteeing to answer for the debts of another person. Further, Plaintiff's cited case of Daughters of Sarah Nursing Home Co., Inc. v. Lipkin, 145 A.D.2d 808, 535 N.Y.S.2d 790, (3 Dept.,1988) does not support Plaintiff's position, as the contract at issue in the Lipkin case included a provision in the agreement where the “Responsible Party” agreed to pay for services. This is not the case in the instant matter, where the contract expressly disclaims any such personal guarantee. In addition, even if the contract actually had a provision requiring a personal guarantee, 'The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast. "It is noteworthy and telling that Plaintiff does not bother to cite to any provision of the contract which would suggest a personal guarantee was made. 3. which it does not, such a provision would be in violation of 42 USC Section 1396r(c)(5)(A)(ii)°, which states: “With respect to admissions practices, a nursing facility must not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility” (emphasis added) Plaintiff's opposition fails to explain how the instant action may be maintained despite this Federal Law. In fact, the federal statute stated by Plaintiff in response only further supports the Defendant’s case that Mark Ast and Ernest Ast cannot be held personally responsible for services provided to another by a nursing facility. 42 USC Section 1396r(c)(5)(B)(ii) states: “(ii) Contracts with legal representatives Subparagraph (A)(ii) shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care” (emphasis added) This provision is clear, no personal guarantee or liability on the part of people responsible for nursing facility patients can be included in a nursing home agreement. Federal law prohibits the instant action in addition to the clear language of the contract. Thus, quite simply, Plaintiff has no legal basis to sue Mark Ast or Ernest Ast in their individual capacities. Plaintiff would only be able to theoretically able to sue the Estate of the decedent, which does not currently exist, has not been joined in the action, and is not even included a party to the action. The caption identifies “Fiduciary for The Estate of Betty Ast” as a party, and does not designate any representative capacity on behalf on any estate. Further, there can be no fiduciary for estate which does not exist. Further, Plaintiff argues, as a result of the facially deficient Complaint, that all allegations *The Defendants January 6, 2015 Memorandum of law misidentified this statute as 42 USC Section 1396(c)(5)(A). -4. must be afforded every favorable inference on a motion to dismiss (paragraph 20) and that Plaintiff must be afforded discovery in order determine if they have a valid claim (paragraph 2) However, “On motion to dismiss, even though the pleaded facts are presumed true and accorded the most favorable inference, allegations consisting of bare legal conclusions... will not be given such consideration. Gelbman v. Valleycrest Production, Ltd., 189 Misc.2d 403, 732 N.Y.S.2d 528. (New York County, 2001). Quite simply, Plaintiff's complaint consists solely of bare legal conclusions and a fabricated personal guarantee contradicted by the contract itself, which was further never signed by Mark Ast. Further, stating no discovery has taken place is completely irrelevant to a Motion to Dismiss under CPLR 3211, which is determined solely on the pleadings for the action. B) Numerous Duplicative and Improper Restatements of the Exact Same Invalid Contract Action in the Guise of Other Causes of Action are All Improper for a Multitude of Reasons Beyond Their Redundant Nature. The Shotgun Shell Approach is to Mask the Obvious Deficiencies of the Contract Claim Likely aware of the invalid nature of the first cause of action under written contract, Plaintiff then attempts to mask this claim under the guise of numerous other causes of action which are all redundant of the contract claim and all suffer numerous fatal flaws. Second Cause of Action - Oral Contract The second cause of action simply restates the same claim as the written contract, claiming a personal guarantee was made orally by Defendants. Even if this false claim were true, it would not be a valid claim for the same reasons why the written contract claim may not be “A fact which is uncontroverted by Plaintiff. 5. maintained. Further, this oral contract claim of a personal guarantee would violate the New York Statute of Frauds N.Y. Code Section 5-701, which declares all agreements to answer to the debt of another be in writing, or else they are void. Plaintiff's opposition does not even attempt to respond to the implications of the statute of frauds on their claim of a oral contract of a personal guarantee. Third Cause of Action- Quantum Meruit and Unjust Enrichment Ignoring the poor drafting of listing two separate causes of action under Plaintiff's Claimed Third Cause of action, Plaintiff may not proceed under either a quantum meruit claim or an unjust enrichment claim. Despite the Defendant’s arguments that the Quantum Meruit claim is an improper and redundant restating of a written contract claim, Plaintiff's opposition does not make any argument responding to the point other than to make a conclusory statement that the cause of action is “viable.” based upon well established New York and Federal law, which Plaintiff does not bother to identify. (Paragraph 25 of Plaintiff's Counsel Affirmation). Essentially, Plaintiff did not even respond to Defendants arguments to dismiss the quantum meruit claim. Similarly Plaintiff makes absolutely no counter-argument regarding the redundancy of the claim for an unjust enrichment. Plaintiff then claims that Defendants Mark Ast and Ernest Ast in fact benefitted for services provided to Betty Ast. However, this argument seems to treat a mother and her sons as the same entity. This benefit that was received by Mark Ast and Ernest Ast was that “it pleased them to see their mother receive... care from plaintiff's nursing facility.” Apparently the benefit which Plaintiff conferred upon Mark Ast and Ernest Ast which is being unjustly retained and must be returned to the Plaintiff is warm feelings. Any services allegedly -6- provided by Plaintiff were provided to Betty Ast, who is the person who received any benefit of these services. In any event, a claim for unjust enrichment cannot be made as the contract explicitly prohibits holding Mark Ast or Ernest Ast individually responsible for any claimed charges. Fourth Cause of Action - Conversion of Assets Plaintiff's opposition arguments regarding their fourth cause of action lack any basis in law and Plaintiff appears to have invented a new cause of action. Paragraph 28 of the Opposition Affirmation by Plaintiff's Counsel claims that “When property belonging to another is entrusted in the hands of another, pursuant to agreement or position of trust, the wrongful conversion of such property by the individual in the trusted position will be liable for fraudulent conversion.” However, Plaintiff fails to cite any case law in support of this claim, as their simply is no cause of action for “fraudulent conversion” recognized in the state of New York. Plaintiff has apparently invented a novel and wholly new cause of action. Even if claiming the cause of action for conversion, which does exist in the state of new York, Plaintiff made no opposition argument whatsoever which addressed that fact that the conversion claim is, once again, duplicative of a written contract claim and Plaintiff fails to identify any duty independent of the contract which was breached. “The negligence and conversion claims were also properly dismissed because ‘a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.” Superior Officers Council Health & Welfare Fund v. Empire HealthChoice Ass., Inc., 85 A.D.3d 680, 927 N.Y.S.2d 324 (1st Dept., 2011) Further, an allegation “upon information and belief” that Defendants are in -7- possession of some unidentified assets has no evidentiary value and is not to be afforded factual deference for a motion to dismiss. See Mandarin Trading Ltd. v. Wildenstein, 17 Mise.3d 1118(A), 851 N.Y.S.2d 71 (Table) (N.Y.Sup.,2007). Fifth Cause of Action - Fraudulent Conveyance Under Debtor Creditor Law Yet again, Plaintiff's cause of action for fraudulent conveyance is a redundant restating of the invalid written contract claim. The fraudulent conveyance claim only makes legally conclusory claims, “upon information and belief,” that “all or some” nebulous assets/income were transferred to some unidentified entity, at some unidentified time in order to prevent payment. These claims upon information and believe* lack evidentiary value and are not to be afforded deference on a motion to dismiss. See Mandarin Trading Ltd. v. Wildenstein, 17 Misc.3d 1118(A), 851 N.Y.S.2d 71 (Table) (N.Y.Sup.,2007) Further, the Complaint does not address the elements for a claim of Fraudulent conveyance. “To prevail on such a fraudulent conveyance claim, the movant must establish three elements: (1) that the conveyance was made without fair consideration; (2) that at the time of transfer, the transferor was a defendant in an action for money damages or a judgment in such action had been docketed against him; and (3) that a final judgment has been rendered against the transferor that remains unsatisfied.” Fischer v Sadov Realty Corp., 34 A.D.3d 632, 829 N.Y.S.2d 108, (2™ Dept. 2006). Plaintiff fails to identify any conveyance in the Complaint, and only makes a conclusory statement that some nebulous conveyance occurred. Further, there was no action against Mark Ast or Ernest Ast at the time of the mystery conveyance, nor does Plaintiff even allege there was. *Statements made by an attorney who lacks personal knowledge. -8- Finally, no final judgment has been rendered against Mark Ast or Ernest Ast, and Plaintiff does not allege such. Thus, of the three elements to establish a cause of action for fraudulent conveyance, Plaintiff cannot establish a single one. Quite simply, this is frivolous by the Plaintiff. Sixth Cause of Action - Constructive Fraud Plaintiff's Sixth Cause of Action alleging constructive fraud does not even bother to recite a single element of the claim. There is absolutely no claim that any material misrepresentation was made. There is absolutely no allegation of knowledge of falsity. There is absolutely no allegation of detrimental reliance. In fact, it would be impossible to draft a more legally deficient cause of action for fraud as absolutely nothing is provided in support of the claim. In response, Plaintiff only makes a conclusory statement that a “myriad” of wrongdoing has occurred, but does not bother to actually identify these acts, or tie these acts to the elements of a constructive fraud claim, or to even bother with a rote recitation of the elements of the cause of action. Further, no duty independent of any contract claim is alleged, and the claim is, yet again, a duplicative restating of the invalid written contract claim. Seventh Cause of Action - Account Stated Plaintiff's opposition argues that the debt was not disputed and is not valid. This opposition completely ignores the arguments made by Defendants that an action for an account stated cannot proceed where there never was any underlying liability. Further, it is uncontroverted by anyone with personal knowledge that these debts were absolutely disputed. In -9- the instant matter, the written contract states that Mark Ast and Ernest Ast will never be held personally responsible, and Plaintiff is now suing to hold these individuals personally responsible. Eighth Cause of Action - Unidentified Cause of Action Purportedly Against the Estate of Betty Ast Plaintiffs opposition argument regarding their wholly unintelligible eighth cause of action completely ignores that fact that the Estate of Betty Ast is not listed as a party to the action in the caption. It completely ignores the fact that the Estate doesn’t exist currently. The opposition further completely ignores the fact that Plaintiff's never served or joined the Estate of Betty Ast. Il) ARGUMENT REGARDING MOTION FOR SUMMARY JUDGMENT A) Summary Judgment Generally The assertions made by Defendants in support of the motion for summary judgment must be treated as wholly uncontroverted as Plaintiff has not provided evidence from a person with personal knowledge. Plaintiff only provides the affirmation of counsel in opposition, who lacks personal knowledge of any of the facts. “We repeat today a precept frequently stated where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement.” Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 404 N.E.2d 718, 718 (1980). B) Regarding Mark Ast Soley It is completely uncontroverted and there is no dispute that Mark Ast never signed the contract annexed to Plaintiff's complaint and he never ratified the agreement. Plaintiff only -10- states that this fact must be disregarded as it favors the Defendant, which is a nonsensical argument with any citation to legal authority. Plaintiffs counsel, in the affirmation which lacks any evidentiary value anyway, does not even dispute the fact. Thus, there never was any written agreement or meeting of the minds between Mark Ast and Plaintiff and Mark Ast is entitled to Summary Judgment in Mark Ast’s favor on the written contract claim. Nothing was asserted in opposition which shows there was a written contract with Mark Ast. As demonstrated supra, none of the remaining duplicative causes of action asserted in the complaint are viable against Mark Ast. Co Regarding Mark Ast and Ernest Ast Even despite the fact that Mark Ast was never a party to this contract, both Mark Ast and Ernest Ast are entitled to Summary Judgment as Plaintiff has not presented a single question of material fact which can overcome the simple fact that the contract explicitly forbids the instant action seeking liability against Mark Ast and Emest Ast in their individual capacities. As noted supra, if such a provision was even included in the contract, it would be void as in violation of federal law. Such a provision would be in violation of 42 USC Section 1396r(c)(5)(A)(Gi)®, which states: “With respect to admissions practices, a nursing facility must not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility” Plaintiff's opposition fails to explain how the instant action may be maintained despite °The Defendants January 6, 2015 Memorandum of law misidentified this statute as 42 USC Section 1396(c)(5)(A). -1l- this Federal Law. In fact, the federal statute stated by Plaintiff in response only further supports the Defendant’s case that Mark Ast and Ernest Ast cannot be held personally responsible for services provided to another by a nursing facility. 42 USC Section 1396r(c)(5)(B)(ii) states: “(ii) Contracts with legal representatives Subparagraph (A)(ii) shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care” (emphasis added) This provision is clear, no personal guarantee or liability on the part of people responsible for nursing facility patients can be included in a nursing home agreement. Federal law prohibits the instant action in addition to the clear language of the contract. As such, Defendants Mark Ast and Ernest Ast are entitled to Summary Judgment in their favor. Ii) INCORRECT STATEMENTS CONTAINED IN OPPOSITION PAPERS Defendants must also note several aspects of the Plaintiff's opposition papers which misrepresent the facts and law. Paragraph four of the opposition affirmations states that Affidavits must establish their veracity through the discovery process. This is not the case, as a summary judgment motion supported by affidavit must be conceded or disputed by affidavits of the opposing party (made by a person with personal knowledge and not an attorney who lacks personal knowledge). Further, the summary judgment motion is based upon the affidavits of the Defendants, who have personal -12- knowledge, as well as the contract itself, in addition to the pleadings. Paragraph 7 of the opposition affirmation also misrepresents the terms of the contract at issue, as no where in the contract does the agreement include a personal guarantee by Mark Ast or Ernest Ast. Paragraph 14 contains completely fabricated conversations which do not even identify which Defendant made the claimed statements, based on the fabrication of an attorney who lacks any personal knowledge. Further, Paragraph 3 contains several issues. First, it is never a surprise to an attorney with any litigation experience that a motion to dismiss will occur prior to discovery, as most motions to dismiss are filed prior to discovery, and a Defendant has the option to file a motion to dismiss rather than file a complaint.’ Further, the representation that no conversations regarding discovery have occurred is simply false, as a preliminary conference was held and a discovery schedule was set. See Exhibit A to accompanying Counsel Affirmation. However, it should be noted that the discovery schedule was set to not begin for a period of several months in order to allow the court to rule on the instant motion prior to discovery beginning. (Reflecting the stay of discovery which occurs pursuant to CPLR 3214 when a motion to dismiss or a motion for summary judgment is filed. V) SANCTIONS SHOULD BE AWARDED Despite a clear prohibition by federal law and contract, Plaintiff has engaged in frivolous collection practices against individuals who cannot be held liable as a matter of law. Plaintiff are "In fact, the undersigned counsel wished to file the instant motion to dismiss rather than answer to the complaint, but were unable to due to time constraints as Plaintiffs counsel refused to grant the basic attorney courtesy of an extension to answer or otherwise move, despite the undersigned firms request for the same. -13- suing to hold Mark Ast and Ernest Ast personally responsible pursuant to a contract which states they are never to be held personally responsible Plaintiff then engages in a shotgun shell approach of listing numerous causes of action as duplicate claims of the same invalid contract action. Many of these causes of action do not even bother to recite the elements of the causes of action, let alone plead facts in support of the same. The complaint has no basis in law or fact and has resulted in a frivolous waste of the Court’s time and resources and Defendants time and resources, as well as resulting in legal fees to defeat the baseless frivolous action by Plaintiff. The Court should impose sanctions. IV) CONCLUSION For the above stated reasons, it is respectfully requested that the Court should grant Defendants’ Motion to Dismiss the Action, and grant Defendant’s motion for summary judgment in Defendants’ favor. Should the Court decide not to dismiss the action in its entirety or grant full summary judgment, it is respectfully requested that the Court grant Defendant Mark Ast’s Motion for Partial Summary Judgment as to the claims against Mark Ast Dated: Goshen, New York a> January 21, 2015 Je LO By _ THOMAS "© LANDRIGAN ~ COHEN; ‘LaBARBERA & LANDRIGAN, LLP Attgrheys Jor Mark Ast and Ernest Ast ¥ Matthews Street, Suite 203 Goshen, NY 10924 T: (845) 291-1900 -14-