Preview
(FILED: NEW YORK COUNTY CLERK 0170672015 12:39 PM INDEX NO. 161001/2014
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/06/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
aoe.
JEWISH HOME LIFECARE, Index No. 161001/2014
Plaintiff,
-against-
MARK AST, ERNEST AST and
FIDUCIARY for THE ESTATE OF BETTY AST,
Defendant(s).
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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
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I) PRELIMINARY STATEMENT
Plaintiff is suing Defendants pursuant to a contract wherein the contract clearly states, in
bold typeface:
“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. ol
Plaintiff makes no claim in the Complaint that Defendant Mark Ast or Defendant Ernest
Ast (collectively “Defendants”) ever agreed to personally guarantee payment for services
provided to the late Betty Ast.’ In fact, if any contract provision in the contract at issue required
the Defendants to personally guarantee payment for nursing services, such a provision would be
in violation of Federal Law pursuant to U.S. Code Title 42, Section 1396(c)(5)(A).
Yet, despite the lack of any personal guarantee to answer for the debts of another, and
despite a contract provision which explicitly states that the Defendants are not required to use
their personal resources to pay for nursing care, Plaintiff's are suing the Defendants to force
Defendants to use their personal resources to pay for such care. Plaintiff has absolutely no basis
to sue the Defendants in their individual capacities after explicitly waiving any such right.
The only entity which could theoretically be responsible for Plaintiff's claimed damages
is the non-existent Estate of Betty Ast, which is not even a named party to the action and has not
'The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast.
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yet been formed as an estate. The caption instead names the “Fiduciary for the Estate of Betty
Ast,” in an apparent attempt to hold anyone other than the as of yet unformed estate personally
and individually responsible for Plaintiff's claimed damages.
In light of this lack of any legal basis to collect against the Defendants, Plaintiff has
engaged in a frivolous shotgun shell approach to it’s Pleadings, attempting to rewrite its invalid
contract claim as eight causes of action against the Defendants which essentially restate the
baseless contract claim brought against the wrong parties as a ridiculous collection of causes of
action. The causes of action include Plaintiff attempting to improperly restate the same invalid
written contract action as an oral contract, as an unjust enrichment claim (against parties which
received no services), as a conversion claim (which Plaintiff would not even have standing to
allege), as a fraudulent conveyance claim (which doesn’t identify any property whatsoever), as a
“constructive fraud” claim (which does not even allege any misrepresentation or detrimental
reliance), and as an account stated (where no liability ever existed), Plaintiff does not even
bother to list the elements of many of these claims, and what few elements are recited are simply
stated as legal conclusions without any factual basis or any notice of what exactly is alleged
against the Defendants.
These seriously deficient claims and the Plaintiff's entire complaint are wholly frivolous
and Rule 130 sanctions should be imposed for filing a lawsuit against parties which have no
obligation to pay for any of Plaintiffs claimed debts and for the numerous baseless causes of
action which have no basis, are not plead with any notice as to the factual basis for the claims,
are not plead with particularity where required, do not bother to even list the elements of the
causes of action, and which are brought against individual persons who have absolutely no
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obligation to answer for these claimed debts.
It) ARGUMENT FOR MOTION TO DISMISS
A) Standard for Motion to Dismiss & Sufficiency of Pleadings
With respect to a motion to dismiss, the sufficiency or insufficiency of a pleading is a
question of law and may be determined by the court on a motion to dismiss. Rosner v. Paley, 65
N.Y.2d 736, 492 N.Y.S.2d 13 (1985).
CPLR §321 (a) provides in relevant part that:
“A party may move for judgment dismissing one or more causes of action asserted
against him on the ground that:
1, A defense is founded upon documentary evidence...
7, the pleading fails to state a cause of action...”
“On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must ‘accept the facts as
alleged in the complaint as true, accord plaintiff] | the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit within any cognizable legal theory’
However, ‘allegations consisting of bare legal conclusions as well as factual claims flatly
contradicted by documentary evidence are not entitled to any such consideration.” David v.
Hack, 97 A.D.3d 437, 948 N.Y.S.2d 583, (1st Dept.,2012). (internal citations omitted)
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. Ge/bman vy. Valleycrest Production, Ltd., 189 Misc.2d 403, 732 N.Y.S.2d
528. (New York County, 2001).
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Bare legal conclusions... are not presumed to be true on a motion to dismiss for failure to
state a cause of action, and are not entitled to any consideration. Fada Industries, Inc. v. Falchi
Bldg. Co., L.P.,189 Misc.2d 1, 730 N.Y.S.2d 827 (Queens County 2001).
Where [the pleading] did not contain a plain and concise statement of cause of action, the
complaint should properly have been dismissed (emphasis added). Cardy v. Cardy, 2 A.D.2d
964, 157 N.Y.S.2d 273 (1* Dept. 1956). Such is obviously the case herein.
On [a] motion to dismiss [a pleading] for failure to state a cause of action, [the] test to be
applied is whether [the pleading] gives sufficient notice of transactions, occurrences, or
series of transactions or occurrences intended to be proved and whether requisite elements
of any cause of action known to state's law can be discerned from [pleading’s] averments. JP
Morgan Chase v. J.H. Elec. of New York, Inc. 69 A.D.3d 802, 893 N.Y.S.2d 237 (2™ Dept.
2010).
CPLR §3211(a)(1) states that a party may move for judgment dismissing one or more
causes of action on the grounds that a defense is founded upon documentary evidence. “Bare
legal conclusions and factual claims which are flatly contradicted by the evidence are not
presumed to be true” when considering a motion to dismiss pursuant to CPLR §3211. Peter F.
Gaito Architecture, LLC v. Simone Development Corp., 46 A.D.3d 530, 846 N.Y.S.2d 368 (2nd
Dept. 2007).
Where there is a defense based on documentary evidence proving that the opposing party
does not have and/or cannot prove a viable cause of action, the claim must be dismissed.
Kaufman v. International Business Machines Corp., 61 N.Y.2d 930, 474 N.Y.S.2d 721 (1984).
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B) Plaintiff's Claim of a Breach of Written Contract Against Defendants is
Expressly Forbidden by the Contract Plaintiff Sues Upon, and the Cause of
Action Fails to State a Claim.
The contract upon which Plaintiff is suing the Defendants in their individual capacity
expressly states that Defendants are never personally responsible for any provided care.
Plaintiff’ s First Cause of Action is a written contract claim, alleging that Plaintiff has not
been paid for services Plaintiff claims were provided to Betty Ast. Attached to the complaint,
Plaintiff provided a copy of the written agreement which was allegedly breeched somehow.
However the contract includes a provision which is wholly fatal to Plaintiffs claim of a Breach
of a written Contract. The contract unambiguously provides in bold typeface:
“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.”> (See
Exhibit A to the accompanying Attorney Affirmation, Section 4.2 of Admission
Agreement, referred to herein as the “Agreement”)
This contract provision has absolutely no provisions or limitations which would serve as
an exception to this agreement that Defendants are not personally responsible.
However, the Plaintiff, in spite of the Agreement that states the Defendants are never
personally responsible for the costs of any allegedly provided care, Plaintiff is now suing to
require Defendants to be personally responsible for the costs of any allegedly provided care.
This contractually forbidden claim is made against the Defendant’s despite the fact that it
*The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast.
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would be in violation of Federal Law had the contract actually required the Defendant’s to be
personally responsible for these debts. U.S. Code Title 42, Section 1396(c)(5)(A) provides that a
nursing facility may not require a person to personally guarantee to answer for the as a condition
of admission. In short, even if the contract required Defendant’s to be personally responsible for
the cost of care provided to Betty Ast, which it does not, such a provision would be void as a
violation of Federal law.
Further, the poorly written contract claim fails to even identify a breach of the contract,
instead listing numerous contract provisions and then asserting that Defendants refused to pay for
these services which they have absolutely no obligation to pay, and that Defendants Mark Ast
and Emest are personally responsible for damages, and interests of 1.5% per month (or 18%
annually), which is also higher than New York’s permitted rate of 16% annual interest under
usury laws.
As such, Plaintiff cannot, as a matter of law, maintain an action against Defendants and
the cause of action must be dismissed.
Co Plaintiff's Second Cause of Action is Barred for the Same Reasons as
Plaintiff's First Cause of Action and Further as the Claim is in Violation of
the Statute of Frauds and is Merely a Restatement of Plaintiff’s Improper
Written Contract Claim.
As noted above, it would be a violation of Federal Law and in direct contravention of the
written agreement terms to hold Defendants personally responsible for the costs of nursing
ervices provided to Betty Ast, yet Plaintiff alleges, in vague allegations which are merely legal
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conclusions without any factual support, that Defendants “breached the parties’ oral agreement
by refusing or otherwise failing to pay JEWISH HOME for the cost of care and services provided
by Plaintiffto RESIDENT.” (Exhibit A to Accompanying Attorney Affirmation, Complaint,
Paragraph 27.
The same reasons that prevent Plaintiff from recovering on its improper and frivolous
written contract claim prevent Plaintiff from recovering or even pursuing this duplicative oral
contract claim which only states legal conclusions without any factual basis, and which also
directly contravenes the written agreements terms with forbids Plaintiff from holding Defendants
personally responsible for any provided nursing care.
Additionally, such an action by Plaintiff to hold Defendants personally responsible for the
debts of another pursuant to a claim of an oral contract is, as matter of law, legally impossible as
in violation of the New York statute of frauds.
N.Y. Code Section 5-701, which governs which New York Agreements must be in
writing, expressly states that any agreement to answer for the debt of another person must be in
writing.
Section 5-70] states in relevant part:
“a. Every agreement, promise or undertaking is void, unless it or some note or
memorandum thereof be in writing, and subscribed by the party to be charged therewith,
or by his lawful agent, if such agreement, promise or undertaking: 2. Is a special promise
to answer for the debt, default or miscarriage of another person.”
As such, Plaintiff cannot, as a matter of law, maintain an action against Defendants
claiming they must answer for the debts of another person based on an oral contract because the
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claimed action would violate the New York Statute of Frauds.
Plaintiff's second cause of action must be dismissed.
D) Plaintiff's Third (Unjust Enrichment) and Fourth (Conversion) Causes of
Action Both Fail to State a Cause of Action, Fail to Even Recite the Elements
of the Claims, and are Duplicative of Plaintiff’s Mlegal and Improper First
Cause of Action for a Contract Claim. Plaintiff further lacks any standing to
make a conversion claim on behalf of Betty Ast. Plaintiff further cannot
claim unjust enrichment against someone who has received no services or
benefits.
Plaintiffs improper contract claim is invalid and improper, and would be frivolous solely
in its own right, however, Plaintiff then further wastes judicial resources in its Complaint by
attempting to improperly and repetitively restate the improper contract claim in the clothing
numerous other, and wholly inapplicable, causes of action.
Plaintiffs “Conversion of Assets” claim is simply a restating of the unenforceable
contract claim using another inapplicable cause of action. Plaintiffs “Quantum Meruit/Unjust
Enrichment” claim suffers the same failings.
It is a “well-settled principle that, ‘to sustain a conversion claim, a plaintiff must allege
acts that are unlawful or wrongful as distinguished from acts that are a mere violation of
contractual rights.’ Meisels v. Schon Family Foundation, 28 Misc.3d 1205(A), 957 N.Y.S.2d 637
(Kings County, 2010), citing Fraser v. Doubleday & Co., 587 F.Supp. 1284, 1288
(S.D.N.Y.1984).
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“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), citing
Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y .2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d
190 (1987).
“Thus, inasmuch as plaintiffs predicate their conversion cause of action upon the identical
allegations upon which their breach of contract cause of action is based, plaintiffs' ‘claim alleging
conversion merely restates [their] cause of action to recover damages for breach of contract and
does not allege a separate taking’. Plaintiffs' conversion claim covers only what their complaint
alleges was an express contractual obligation; the conversion claim ‘does not stem from a wrong
which is independent of the alleged breach’ of the contracts. Therefore, plaintiffs cannot recast
their contract claim as a cause of action in tort for conversion, and their duplicative conversion
claim must be dismissed. Cirri v. Daily News, L.P., 9 Misc.3d 1130(A), 862 N.Y.S.2d 807
(Table) (Kings County, 2005), (internal citations omitted).
At absolutely no point in point in the Complaint does Plaintiff even attempt to identify
any duty separate from the alleged (and invalid) written contract claim. As such, the conversion
claim must be dismissed.
Further, Plaintiff also lacks any standing to make a claim that Mark Ast or Ernest Ast
converted unidentified property from Betty Ast. If such a wrong even occurred, which it did not,
the claim would only be able to be brought by the person whose assets were allegedly converted,
in this case, Betty Ast. Plaintiff has no standing to claim Defendants converted assets from a
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separate entity.
Concerning Plaintiffs “Quantum Meruit/Unjust Enrichment” cause of action, this claim
is similarly a frivolous restating of Plaintiff's invalid contract claim.
“An unjust enrichment claim, however, is not viable where, as here, the claim merely
seeks the enforcement of an unenforceable contract, and is duplicative of a claim for a breach of
such an unenforceable contract. Furthermore, plaintiff may not utilize a quantum meruit theory
of recovery to circumvent the statute of frauds. Therefore, dismissal of this cause of action is
mandated.” Saul v. Cahan, 45 Misc.3d 1214(A), Slip Copy, 2014 WL 5801839 (Table)
N.Y.Sup., (2014) citing Mark Bruce Intl. Inc. v. Blank Rome, LLP, 60 AD3d 550, 551 (1st Dept
2009) and American—European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 171 (st Dept
1996).
This is exactly the case currently before the court. Plaintiff, being unable to recover on an
unenforceable and frivolous contract claim, has simply restated the contract claim over and over
in an improper and frivolous attempt to hold people, who Plaintiff had promised would not be
personally responsible for the cost of nursing care, as personally responsible for the cost of
nursing care.
Further, it requires no citation that an unjust enrichment claim requires the party to have
received a benefit or enrichment from the facts alleged. “The essential inquiry in any action for
unjust enrichment or restitution is whether it is against equity and good conscience to permit the
defendant to retain what is sought to be recovered” Mandarin Trading Ltd. v. Wildenstein, 65
A.D.3d 448, 884 N.Y.S.2d 47 (1* Dept., 2009), citing Paramount Film Distrib. Corp. v. State of
New York, 30 N.Y.2d 415, 421, 334 N.Y.S.2d 388, 285 N.E.2d 695 (1972).
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However, Plaintiffs complaint does not even bother to identify what property unjustly
enriched Defendants. Instead, Plaintiff states Defendants were unjustly enriched by services
provided to Betty Ast. Plaintiff should note that Defendants and Betty Ast are not the same
person, and the alleged benefits provided to Betty Ast are not benefits provided to Defendants.
The poorly written Pleading is drafted not as an unjust enrichment claim, but as merely a
restatement the unenforceable contract claim. The unjust enrichment claim is also, as a matter of
law, not even properly plead, as it only alleges that benefits were provided to Betty Ast, and does
not allege these benefits were provided to Defendants, who Plaintiff claims were unjustly
enriched without any basis whatsoever.
E) Plaintiff's Fifth and Sixth Causes of Action for Fraud Were Drafted Without
Any Semblance of Particularity, and Fail to State a Cause of Action or Even
List the Basic Elements of the Claim.
“The elements of a cause of action sounding in fraud are material misrepresentation of an
existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable
reliance upon the misrepresentation, and damages.” Orchid Construction Corp. v. Gottbetter, 89
A.D.3d 708, 932 N.Y.S.2d 100 (2d Dep't 2011) CPLR §3016 requires particularity in the
pleading of specific actions and states, in pertinent part, that “where a cause of action or defense
is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue
influence, the circumstances constituting the wrong shall be stated in detail.” Briarpatch Ltd. y,
Frankfurt, Garbus, Klein & Selz, 13 A.D.3d 296, 787 N.Y.S.2d 267 (1st Dep't 2004) (dismissing
claim sounding in fraud and conspiracy to commit fraud as not pleaded with sufficient
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particularity).
With respect to an allegation of fraud, a [pleading] to recover damages for fraud failed to
state [a] cause of action where [the party] failed to plead reliance, failed to plead knowledge
by [the adverse party] of [the] falsity of their alleged representations, and failed to comply
with requirement of particularity. (Emphasis added) M.B.L. Distributors, Inc. v. Kahn 58
A.D.2d 806, 396 N.Y.S.2d 256 (2™ Dept. 1977).
To establish a fraud claim arising in connection with a contractual relationship, “the
plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the
parties” Krantz v. Chateau Stores of Canada, 256 A.D.2d 186, 187 [1st Dept 1998]; see Cole,
Schotz, Meisel, Forman & Leonard, P.A. v. Brown, 109 A.D.3d 764 [1st Dept 2013] ). In other
words, the alleged fraud must be “sufficiently discrete from that underlying the breach of contract
claim [in order to] state a separate cause of action” Kosowsky v.. Willard Mtn., Inc., 90 AD3d
1127, 1129 (3d Dept 2011).
Here, plaintiff's allegations of fraud are deficiently pled and fail to meet the heightened
pleading requirement of the CPLR, as they are devoid of any facts (as opposed to legal
conclusions) sufficient to support any of the necessary elements. Here, Plaintiffs do not even
bother to identify the elements of their fraud claims, let along bother to provide factual basis that
would meet even the less demanding “notice” standard for pleadings. Plaintiff's and wholly and
embarrassingly fail to plead fraud with any sort particularity. The complaint provides absolutely
no notice of what Defendants are alleged to have done. All these failings are in addition to the
fact that these fraud claims are, once again, an improper restating of Plaintiff's unenforceable
contract claim.
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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. The complaint does
not even allege that these mystery conveyances rendered Betty Ast insolvent, as required for such
a cause of action.
Plaintiffs claim of constructive fraud would be laughable if it were not so absolutely
frivolous and brought in bad faith. Reproduced herein is the entirety of Plaintiff's claim of
“constructive fraud”:
“51. Plaintiff repeats and re-alleges each and every allegation set forth in paragraphs 1
through 50 above, inclusive, with the same force and effect as though fully set forth
herein.
52. By reason of the foregoing, Plaintiff JEWISH HOME has suffered damages in the
sum of $46,472 by virtue of the constructive fraud of Defendants MARK AST and
ERNEST AST.” (Exhibit A, Complaint Paragraphs 51-52.)
No person could possibly claim that the above claim of “constructive fraud” was plead
with particularity and keep a straight face. The inclusion of this cause of action is clearly
frivolous conduct. Plaintiff does not even bother, in this cause of action, to list the elements of
the cause of action as legal conclusions. 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.
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Further, just as is the case with the all of Plaintiffs causes of action, the claims of
fraudulent conveyance and constructive are merely improper restatements of an unenforceable
contract claim. No breach of duty which is collateral or extraneous to the contract is alleged.
As such, Plaintiff's causes of action alleging constructive fraud and fraudulent
conveyance must be dismissed as a matter of law.
F) Plaintiff's Seventh Cause of Action Fails to State a Claim and the Claim is
Barred as it is in Violation of Federal Law
Just as with all the other causes of action in Plaintiff's complaint, Plaintiff's cause of
action for an Account Stated is yet another attempt to improper restate Plaintiffs unenforceable
contract claim. Just as with all the other causes of action in Plaintiff's complaint, no factual
support is provided, and the allegation is just a rote recitation of legal conclusions.
It is further telling that Plaintiff alleges, only “upon information and belief”, that
Defendants received and retained said statements of account.
An essential element of an account stated is an agreement with respect to the amount of
the balance due’ ” Seneca Pipe & Paving Co., Inc. v. South Seneca Cent. Sch. Dist., 83 A.D.3d
1540, 1541, 921 N.Y.S.2d 752 (2011). In the instant matter, do not even allege that there was an
agreement that amounts were due. It is telling that no evidence is provided in support.
Further, and totally fatal to Plaintiffs next restatement of an improper contract action,
“[A cause of action for account stated] cannot be used to create liability where none otherwise
exists.” DL Marble & Granite Inc. vy. Madison Park Owner, LLC, 105 A.D.3d 479, 963
N.Y.S.2d 94 (1st Dept.,2013) citing Gurney, Becker & Bourne, Inc. v. Benderson Development
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Co., Inc., 47 N.¥.2d 995, 996, 420 N.Y.S.2d 212, 394 N.E.2d 282 (1979).
Where Defendants have no liability under Plaintiff's improper contract claim, Plaintiff
cannot invent liability under an account stated theory.
GS) Plaintiff’s Eighth Cause of Action is Unintelligible and is Brought Against a
Party Which Does Not Currently Exist and is Not Even Included in the
Caption.
There simply is no way of discerning what cause of action is even alleged in Plaintiff's
Eighth Cause of Action “As against the Estate of Betty Ast.” Furthermore, it is apparent that
Plaintiff is unsure of who it is even attempting to sue as the “Estate of Betty Ast” is not even a
party included in the caption of the matter. Instead of naming the Estate of Betty Ast, the
Complaint instead names an unidentified “Fiduciary for the Estate of Betty Ast.”
The fatal errors in the Eighth cause of action are very numerous, including making a
indecipherable claim against a party which is not even included in the action, which does not yet
exist, and which has not been joined in the action.
As an initial matter, the purported eighth cause of action claims to be against the estate of
Betty Ast, however, the Estate of Betty Ast is not included as a party in the caption. Instead, the
caption lists an unidentified “Fiduciary for the Estate of Betty Ast,” apparently attempting to
name someone in their individual capacity for actions done as an agent.
Further, as noted in the accompanying affidavits, the Estate of Betty Ast has, as of this
time, not yet been formed, and no executor has yet been appointed. As such, service of process
against the estate was and remains impossible to achieve until an executor is appointed.
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Additionally, the eighth cause of action is wholly un-intelligible as it is impossible to
determine if this claim is based on a contract claim, tort claim, or even a quasi-contract claim.
The claim only states that services were provided, and Plaintiff claims to be owed damages.
As some of the language in the eighth cause of action suggests that this may be an
account stated claim, then if this claim is simply a restating of Plaintiff's seven cause of action
for an account stated, then this claim is invalid for the same reasons as Plaintiff's seventh cause
of action, in addition to the above noted issues.
H) In Addition to Dismissal of the Action, The Court Should Sanction Plaintiff
and Award Costs to Defendants for Frivolous Litigation and for Seeking
Damages Pursuant to a Contract Provision Explicitly Forbidden by Federal
Law Governing Nursing Facilities
Rule 130-1.1 governs the availability of sanctions and provides:
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable
argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or
to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
In the instant matter, the Plaintiff has filed a claimed breach of contract claim against
Mark Ast and Emest Ast, in their individual capacities, for breaching a contract which itself
stated “The Responsible Party [Mark Ast and Ernest Ast] is not required to use his/her personal
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resources to pay for such care.” Having no contractual basis for seeking damages against the
Defendants, the Plaintiff instead filed a litany of inapplicable causes of action which simply
restated Plaintiff's improper contract claim. These improper causes of action even include
absolutely baseless and frivolous claims of fraud which do not even bother to identify any
material misrepresentation, detrimental reliance, or even include a rote recitation the elements of
the cause of action. These causes of action lack absolutely any merit in law and should result in
sanctions.
D Plaintiffs Claims Are Not a Ripe Controversy
Additionally, the Complaint seems to allege that the Defendants did not assist with
applications for coverage from third party payor(s) to meet the Resident’s obligations to the
Plaintiff. However any such allegation is not a ripe controversy as a Medicare appeal is currently
ongoing as noted in the accompanying affidavit of Mark Ast.
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Ty ARGUMENT FOR MOTION FOR SUMMARY JUDGMENT
A) Statement of Material Facts
1) Betty As was located and in the care of Jewish Home Lifecare from March
30", 2012 until July 26", 2012.
2) Betty Ast passed away on June 10, 2013.
3) Mark Ast and Ernest Ast are children of Betty Ast.
4) On or about March 30", 2012 Plaintiff provided Ernest Ast with a
proposed agreement regarding services to be provided by Plaintiff with
respect to Betty Ast.
5) At no time prior to its purported execution did Mark Ast review, sign or
agree to the terms of the Agreement attached to the accompanying attorney
Affirmation as part of Exhibit A.
6) On or about April 3, 2012, Ernest Ast executed the Agreement.
7) On or about April 3, 2012, based upon the mistaken belief that Mark Ast
would later assent to and ratify the terms of the Agreement, Ernest Ast
signed Mark Ast’s name to the Agreement.
8) Plaintiff agreed in the Agreement that Mark Ast and Ernest Ast would
never be personally obligated to pay for whatever care was provided by
Plaintiff to Betty Ast.
9) On or about November 5, 2014, Plaintiff filed the instant action, seeking a
judgment holding Mark and Ernest Ast as personally responsible and
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obligated to pay for services Plaintiff claims were provided to Betty Ast.
B) Summary Judgement Standard
CPLR 3212(b) states in relevant part that:
“A motion for summary judgment shall be supported by affidavit, by a copy of
the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts; it
shall recite all the material facts; and it shall show that there is no defense to the
cause of action or that the cause of action or defense has no merit. The motion
shall be granted if, upon all the papers and proof submitted, the cause of action
or defense shall be established sufficiently to warrant the court as a matter of
law in directing judgment in favor of any party.”
A movant seeking summary judgment in its favor must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case. Winegradv. New York Unv. Med Ctr., 64 NY2d 851, 853
(1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals
v. Assoc. Fur Manufacturers, 46 NY2d 1065 ( 1979). Once met, this burden shifts to the
opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v.
Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557
(1980).
It is well settled that "on a motion for summary judgment, the construction of an
unambiguous contract is a question of law for the court to pass on, and ... circumstances extrinsic
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to the agreement or varying interpretations of the contract provisions will not be considered,
where ... the intention of the parties can be gathered from the instrument itself." Maysek &
Moran, Inc. v. S.G. Warburg & Co., Inc., 284 AD2d 203, 204 (1st Dept. 2001), citing Lake
Constr. & Development Corp. v. City of New York, 211 AD2d 514, 515 (1st Dept. 1985).
°) Full Summary Judgment Should be Granted in Favor of Defendants as the
Instant Cause of Action is Contractually Forbidden
The contract upon which Plaintiff is suing the Defendants in their individual capacity
expressly states that Defendants are never personally responsible for any provided care.
The Agreement attached to Plaintiff's Complaint states:
“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.” (See
Exhibit A to the accompanying Attorney Affirmation, Section 4.2 of Admission
Agreement, referred to herein as the “Agreement”)
This contract provision has absolutely no provisions or limitations which would serve as
an exception to this agreement that Defendants are not personally responsible. Further, the
contract is unambiguous and any claimed ambiguity must be construed against Plaintiff as the
drafting party of this adhesion contract.
However, the Plaintiff, in spite of the Agreement that states the Defendants are never
personally responsible for the costs of any allegedly provided care, Plaintiff is now suing to
“The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast.
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require Defendants to be personally responsible for the costs of any allegedly provided care.
This contractually forbidden claim is made against the Defendant’s despite the fact that it
would be in violation of Federal Law had the contract actually required the Defendant’s to be
personally responsible for these debts. U.S. Code Title 42, Section 1396(c)(5)(A) provides that a
nursing facility may not require a person to personally guarantee to answer for the as a condition
of admission. In short, even if the contract required Defendant’s to be personally responsible for
the cost of care provided to Betty Ast, which it does not, such a provision would be void as a
violation of Federal law.
Defendants are entitled to summary judgment as a matter of law on Plaintiff's first cause
of action alleging breech of contract.
Further, as noted, supra, in Defendants’ arguments concerning Defendants’ motion to
dismiss, the additional causes of action in Plaintiff's complaint are merely improper restatements
of Plaintiff's invalid contract claim. For the same reasons as enumerated in the above arguments
regarding Defendants’ motion to dismiss, summary judgment should also be granted in favor of
Defendants as to Plaintiffs second, third, fourth, fifth, sixth, seventh, and eighth causes of
action.
D) In the Event that Full Summary Judgment is Not Granted by the Court, The
Court Should Grant Partial Summary Judgment in Favor of Mark Ast, Who
Never Agreed to or Signed the Agreement at Issue, and Never Ratified the
Contract.
As noted in the accompanying affidavits of Mark Ast and Ernest Ast, Mark Ast never
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agreed to the Agreement, never signed the Agreement, and never later ratified the Agreement.
Ernest Ast signed Mark’s Ast’s name to the Agreement at issue under the incorrect
assumption that Mark Ast would later ratify the agreement, and Mark Ast did not agree to the
terms or ratify the terms
As such, there was never a meeting of the minds between Mark Ast and Plaintiff, and no
contract was made between Mark Ast and Plaintiff.
As all causes of action are based upon an alleged breach of the Agreement or improper
restatements of the contract claim cavorting as tort and quasi contract claims, partial summary
judgment should be granted in favor of Mark Ast as to all causes of action.
Vv) 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 _
January 6, 2015 we
By:
THOMAS©:C.LA DRIGAN
COHEN, LaARBERA & LANDRIGAN, LLP
Altorney for Mark Ast and Ernest Ast
40 ‘ithews Street, Suite 203
oshen, NY 10924
T: (845) 291-1900
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Preview
(FILED: NEW YORK COUNTY CLERK 0170672015 12:39 PM INDEX NO. 161001/2014 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/06/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK aoe. JEWISH HOME LIFECARE, Index No. 161001/2014 Plaintiff, -against- MARK AST, ERNEST AST and FIDUCIARY for THE ESTATE OF BETTY AST, Defendant(s). ween eee enn nee een eee en nnn en enennnenenenneneeennee 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- I) PRELIMINARY STATEMENT Plaintiff is suing Defendants pursuant to a contract wherein the contract clearly states, in bold typeface: “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. ol Plaintiff makes no claim in the Complaint that Defendant Mark Ast or Defendant Ernest Ast (collectively “Defendants”) ever agreed to personally guarantee payment for services provided to the late Betty Ast.’ In fact, if any contract provision in the contract at issue required the Defendants to personally guarantee payment for nursing services, such a provision would be in violation of Federal Law pursuant to U.S. Code Title 42, Section 1396(c)(5)(A). Yet, despite the lack of any personal guarantee to answer for the debts of another, and despite a contract provision which explicitly states that the Defendants are not required to use their personal resources to pay for nursing care, Plaintiff's are suing the Defendants to force Defendants to use their personal resources to pay for such care. Plaintiff has absolutely no basis to sue the Defendants in their individual capacities after explicitly waiving any such right. The only entity which could theoretically be responsible for Plaintiff's claimed damages is the non-existent Estate of Betty Ast, which is not even a named party to the action and has not 'The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast. -2- yet been formed as an estate. The caption instead names the “Fiduciary for the Estate of Betty Ast,” in an apparent attempt to hold anyone other than the as of yet unformed estate personally and individually responsible for Plaintiff's claimed damages. In light of this lack of any legal basis to collect against the Defendants, Plaintiff has engaged in a frivolous shotgun shell approach to it’s Pleadings, attempting to rewrite its invalid contract claim as eight causes of action against the Defendants which essentially restate the baseless contract claim brought against the wrong parties as a ridiculous collection of causes of action. The causes of action include Plaintiff attempting to improperly restate the same invalid written contract action as an oral contract, as an unjust enrichment claim (against parties which received no services), as a conversion claim (which Plaintiff would not even have standing to allege), as a fraudulent conveyance claim (which doesn’t identify any property whatsoever), as a “constructive fraud” claim (which does not even allege any misrepresentation or detrimental reliance), and as an account stated (where no liability ever existed), Plaintiff does not even bother to list the elements of many of these claims, and what few elements are recited are simply stated as legal conclusions without any factual basis or any notice of what exactly is alleged against the Defendants. These seriously deficient claims and the Plaintiff's entire complaint are wholly frivolous and Rule 130 sanctions should be imposed for filing a lawsuit against parties which have no obligation to pay for any of Plaintiffs claimed debts and for the numerous baseless causes of action which have no basis, are not plead with any notice as to the factual basis for the claims, are not plead with particularity where required, do not bother to even list the elements of the causes of action, and which are brought against individual persons who have absolutely no 3 obligation to answer for these claimed debts. It) ARGUMENT FOR MOTION TO DISMISS A) Standard for Motion to Dismiss & Sufficiency of Pleadings With respect to a motion to dismiss, the sufficiency or insufficiency of a pleading is a question of law and may be determined by the court on a motion to dismiss. Rosner v. Paley, 65 N.Y.2d 736, 492 N.Y.S.2d 13 (1985). CPLR §321 (a) provides in relevant part that: “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1, A defense is founded upon documentary evidence... 7, the pleading fails to state a cause of action...” “On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must ‘accept the facts as alleged in the complaint as true, accord plaintiff] | the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ However, ‘allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.” David v. Hack, 97 A.D.3d 437, 948 N.Y.S.2d 583, (1st Dept.,2012). (internal citations omitted) 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. Ge/bman vy. Valleycrest Production, Ltd., 189 Misc.2d 403, 732 N.Y.S.2d 528. (New York County, 2001). -4. Bare legal conclusions... are not presumed to be true on a motion to dismiss for failure to state a cause of action, and are not entitled to any consideration. Fada Industries, Inc. v. Falchi Bldg. Co., L.P.,189 Misc.2d 1, 730 N.Y.S.2d 827 (Queens County 2001). Where [the pleading] did not contain a plain and concise statement of cause of action, the complaint should properly have been dismissed (emphasis added). Cardy v. Cardy, 2 A.D.2d 964, 157 N.Y.S.2d 273 (1* Dept. 1956). Such is obviously the case herein. On [a] motion to dismiss [a pleading] for failure to state a cause of action, [the] test to be applied is whether [the pleading] gives sufficient notice of transactions, occurrences, or series of transactions or occurrences intended to be proved and whether requisite elements of any cause of action known to state's law can be discerned from [pleading’s] averments. JP Morgan Chase v. J.H. Elec. of New York, Inc. 69 A.D.3d 802, 893 N.Y.S.2d 237 (2™ Dept. 2010). CPLR §3211(a)(1) states that a party may move for judgment dismissing one or more causes of action on the grounds that a defense is founded upon documentary evidence. “Bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true” when considering a motion to dismiss pursuant to CPLR §3211. Peter F. Gaito Architecture, LLC v. Simone Development Corp., 46 A.D.3d 530, 846 N.Y.S.2d 368 (2nd Dept. 2007). Where there is a defense based on documentary evidence proving that the opposing party does not have and/or cannot prove a viable cause of action, the claim must be dismissed. Kaufman v. International Business Machines Corp., 61 N.Y.2d 930, 474 N.Y.S.2d 721 (1984). 5 B) Plaintiff's Claim of a Breach of Written Contract Against Defendants is Expressly Forbidden by the Contract Plaintiff Sues Upon, and the Cause of Action Fails to State a Claim. The contract upon which Plaintiff is suing the Defendants in their individual capacity expressly states that Defendants are never personally responsible for any provided care. Plaintiff’ s First Cause of Action is a written contract claim, alleging that Plaintiff has not been paid for services Plaintiff claims were provided to Betty Ast. Attached to the complaint, Plaintiff provided a copy of the written agreement which was allegedly breeched somehow. However the contract includes a provision which is wholly fatal to Plaintiffs claim of a Breach of a written Contract. The contract unambiguously provides in bold typeface: “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.”> (See Exhibit A to the accompanying Attorney Affirmation, Section 4.2 of Admission Agreement, referred to herein as the “Agreement”) This contract provision has absolutely no provisions or limitations which would serve as an exception to this agreement that Defendants are not personally responsible. However, the Plaintiff, in spite of the Agreement that states the Defendants are never personally responsible for the costs of any allegedly provided care, Plaintiff is now suing to require Defendants to be personally responsible for the costs of any allegedly provided care. This contractually forbidden claim is made against the Defendant’s despite the fact that it *The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast. -6- would be in violation of Federal Law had the contract actually required the Defendant’s to be personally responsible for these debts. U.S. Code Title 42, Section 1396(c)(5)(A) provides that a nursing facility may not require a person to personally guarantee to answer for the as a condition of admission. In short, even if the contract required Defendant’s to be personally responsible for the cost of care provided to Betty Ast, which it does not, such a provision would be void as a violation of Federal law. Further, the poorly written contract claim fails to even identify a breach of the contract, instead listing numerous contract provisions and then asserting that Defendants refused to pay for these services which they have absolutely no obligation to pay, and that Defendants Mark Ast and Emest are personally responsible for damages, and interests of 1.5% per month (or 18% annually), which is also higher than New York’s permitted rate of 16% annual interest under usury laws. As such, Plaintiff cannot, as a matter of law, maintain an action against Defendants and the cause of action must be dismissed. Co Plaintiff's Second Cause of Action is Barred for the Same Reasons as Plaintiff's First Cause of Action and Further as the Claim is in Violation of the Statute of Frauds and is Merely a Restatement of Plaintiff’s Improper Written Contract Claim. As noted above, it would be a violation of Federal Law and in direct contravention of the written agreement terms to hold Defendants personally responsible for the costs of nursing ervices provided to Betty Ast, yet Plaintiff alleges, in vague allegations which are merely legal -7- conclusions without any factual support, that Defendants “breached the parties’ oral agreement by refusing or otherwise failing to pay JEWISH HOME for the cost of care and services provided by Plaintiffto RESIDENT.” (Exhibit A to Accompanying Attorney Affirmation, Complaint, Paragraph 27. The same reasons that prevent Plaintiff from recovering on its improper and frivolous written contract claim prevent Plaintiff from recovering or even pursuing this duplicative oral contract claim which only states legal conclusions without any factual basis, and which also directly contravenes the written agreements terms with forbids Plaintiff from holding Defendants personally responsible for any provided nursing care. Additionally, such an action by Plaintiff to hold Defendants personally responsible for the debts of another pursuant to a claim of an oral contract is, as matter of law, legally impossible as in violation of the New York statute of frauds. N.Y. Code Section 5-701, which governs which New York Agreements must be in writing, expressly states that any agreement to answer for the debt of another person must be in writing. Section 5-70] states in relevant part: “a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 2. Is a special promise to answer for the debt, default or miscarriage of another person.” As such, Plaintiff cannot, as a matter of law, maintain an action against Defendants claiming they must answer for the debts of another person based on an oral contract because the -8- claimed action would violate the New York Statute of Frauds. Plaintiff's second cause of action must be dismissed. D) Plaintiff's Third (Unjust Enrichment) and Fourth (Conversion) Causes of Action Both Fail to State a Cause of Action, Fail to Even Recite the Elements of the Claims, and are Duplicative of Plaintiff’s Mlegal and Improper First Cause of Action for a Contract Claim. Plaintiff further lacks any standing to make a conversion claim on behalf of Betty Ast. Plaintiff further cannot claim unjust enrichment against someone who has received no services or benefits. Plaintiffs improper contract claim is invalid and improper, and would be frivolous solely in its own right, however, Plaintiff then further wastes judicial resources in its Complaint by attempting to improperly and repetitively restate the improper contract claim in the clothing numerous other, and wholly inapplicable, causes of action. Plaintiffs “Conversion of Assets” claim is simply a restating of the unenforceable contract claim using another inapplicable cause of action. Plaintiffs “Quantum Meruit/Unjust Enrichment” claim suffers the same failings. It is a “well-settled principle that, ‘to sustain a conversion claim, a plaintiff must allege acts that are unlawful or wrongful as distinguished from acts that are a mere violation of contractual rights.’ Meisels v. Schon Family Foundation, 28 Misc.3d 1205(A), 957 N.Y.S.2d 637 (Kings County, 2010), citing Fraser v. Doubleday & Co., 587 F.Supp. 1284, 1288 (S.D.N.Y.1984). -9- “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), citing Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y .2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987). “Thus, inasmuch as plaintiffs predicate their conversion cause of action upon the identical allegations upon which their breach of contract cause of action is based, plaintiffs' ‘claim alleging conversion merely restates [their] cause of action to recover damages for breach of contract and does not allege a separate taking’. Plaintiffs' conversion claim covers only what their complaint alleges was an express contractual obligation; the conversion claim ‘does not stem from a wrong which is independent of the alleged breach’ of the contracts. Therefore, plaintiffs cannot recast their contract claim as a cause of action in tort for conversion, and their duplicative conversion claim must be dismissed. Cirri v. Daily News, L.P., 9 Misc.3d 1130(A), 862 N.Y.S.2d 807 (Table) (Kings County, 2005), (internal citations omitted). At absolutely no point in point in the Complaint does Plaintiff even attempt to identify any duty separate from the alleged (and invalid) written contract claim. As such, the conversion claim must be dismissed. Further, Plaintiff also lacks any standing to make a claim that Mark Ast or Ernest Ast converted unidentified property from Betty Ast. If such a wrong even occurred, which it did not, the claim would only be able to be brought by the person whose assets were allegedly converted, in this case, Betty Ast. Plaintiff has no standing to claim Defendants converted assets from a -10- separate entity. Concerning Plaintiffs “Quantum Meruit/Unjust Enrichment” cause of action, this claim is similarly a frivolous restating of Plaintiff's invalid contract claim. “An unjust enrichment claim, however, is not viable where, as here, the claim merely seeks the enforcement of an unenforceable contract, and is duplicative of a claim for a breach of such an unenforceable contract. Furthermore, plaintiff may not utilize a quantum meruit theory of recovery to circumvent the statute of frauds. Therefore, dismissal of this cause of action is mandated.” Saul v. Cahan, 45 Misc.3d 1214(A), Slip Copy, 2014 WL 5801839 (Table) N.Y.Sup., (2014) citing Mark Bruce Intl. Inc. v. Blank Rome, LLP, 60 AD3d 550, 551 (1st Dept 2009) and American—European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 171 (st Dept 1996). This is exactly the case currently before the court. Plaintiff, being unable to recover on an unenforceable and frivolous contract claim, has simply restated the contract claim over and over in an improper and frivolous attempt to hold people, who Plaintiff had promised would not be personally responsible for the cost of nursing care, as personally responsible for the cost of nursing care. Further, it requires no citation that an unjust enrichment claim requires the party to have received a benefit or enrichment from the facts alleged. “The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” Mandarin Trading Ltd. v. Wildenstein, 65 A.D.3d 448, 884 N.Y.S.2d 47 (1* Dept., 2009), citing Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421, 334 N.Y.S.2d 388, 285 N.E.2d 695 (1972). -ll- However, Plaintiffs complaint does not even bother to identify what property unjustly enriched Defendants. Instead, Plaintiff states Defendants were unjustly enriched by services provided to Betty Ast. Plaintiff should note that Defendants and Betty Ast are not the same person, and the alleged benefits provided to Betty Ast are not benefits provided to Defendants. The poorly written Pleading is drafted not as an unjust enrichment claim, but as merely a restatement the unenforceable contract claim. The unjust enrichment claim is also, as a matter of law, not even properly plead, as it only alleges that benefits were provided to Betty Ast, and does not allege these benefits were provided to Defendants, who Plaintiff claims were unjustly enriched without any basis whatsoever. E) Plaintiff's Fifth and Sixth Causes of Action for Fraud Were Drafted Without Any Semblance of Particularity, and Fail to State a Cause of Action or Even List the Basic Elements of the Claim. “The elements of a cause of action sounding in fraud are material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages.” Orchid Construction Corp. v. Gottbetter, 89 A.D.3d 708, 932 N.Y.S.2d 100 (2d Dep't 2011) CPLR §3016 requires particularity in the pleading of specific actions and states, in pertinent part, that “where a cause of action or defense is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.” Briarpatch Ltd. y, Frankfurt, Garbus, Klein & Selz, 13 A.D.3d 296, 787 N.Y.S.2d 267 (1st Dep't 2004) (dismissing claim sounding in fraud and conspiracy to commit fraud as not pleaded with sufficient -12- particularity). With respect to an allegation of fraud, a [pleading] to recover damages for fraud failed to state [a] cause of action where [the party] failed to plead reliance, failed to plead knowledge by [the adverse party] of [the] falsity of their alleged representations, and failed to comply with requirement of particularity. (Emphasis added) M.B.L. Distributors, Inc. v. Kahn 58 A.D.2d 806, 396 N.Y.S.2d 256 (2™ Dept. 1977). To establish a fraud claim arising in connection with a contractual relationship, “the plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the parties” Krantz v. Chateau Stores of Canada, 256 A.D.2d 186, 187 [1st Dept 1998]; see Cole, Schotz, Meisel, Forman & Leonard, P.A. v. Brown, 109 A.D.3d 764 [1st Dept 2013] ). In other words, the alleged fraud must be “sufficiently discrete from that underlying the breach of contract claim [in order to] state a separate cause of action” Kosowsky v.. Willard Mtn., Inc., 90 AD3d 1127, 1129 (3d Dept 2011). Here, plaintiff's allegations of fraud are deficiently pled and fail to meet the heightened pleading requirement of the CPLR, as they are devoid of any facts (as opposed to legal conclusions) sufficient to support any of the necessary elements. Here, Plaintiffs do not even bother to identify the elements of their fraud claims, let along bother to provide factual basis that would meet even the less demanding “notice” standard for pleadings. Plaintiff's and wholly and embarrassingly fail to plead fraud with any sort particularity. The complaint provides absolutely no notice of what Defendants are alleged to have done. All these failings are in addition to the fact that these fraud claims are, once again, an improper restating of Plaintiff's unenforceable contract claim. -13- 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. The complaint does not even allege that these mystery conveyances rendered Betty Ast insolvent, as required for such a cause of action. Plaintiffs claim of constructive fraud would be laughable if it were not so absolutely frivolous and brought in bad faith. Reproduced herein is the entirety of Plaintiff's claim of “constructive fraud”: “51. Plaintiff repeats and re-alleges each and every allegation set forth in paragraphs 1 through 50 above, inclusive, with the same force and effect as though fully set forth herein. 52. By reason of the foregoing, Plaintiff JEWISH HOME has suffered damages in the sum of $46,472 by virtue of the constructive fraud of Defendants MARK AST and ERNEST AST.” (Exhibit A, Complaint Paragraphs 51-52.) No person could possibly claim that the above claim of “constructive fraud” was plead with particularity and keep a straight face. The inclusion of this cause of action is clearly frivolous conduct. Plaintiff does not even bother, in this cause of action, to list the elements of the cause of action as legal conclusions. 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. -14- Further, just as is the case with the all of Plaintiffs causes of action, the claims of fraudulent conveyance and constructive are merely improper restatements of an unenforceable contract claim. No breach of duty which is collateral or extraneous to the contract is alleged. As such, Plaintiff's causes of action alleging constructive fraud and fraudulent conveyance must be dismissed as a matter of law. F) Plaintiff's Seventh Cause of Action Fails to State a Claim and the Claim is Barred as it is in Violation of Federal Law Just as with all the other causes of action in Plaintiff's complaint, Plaintiff's cause of action for an Account Stated is yet another attempt to improper restate Plaintiffs unenforceable contract claim. Just as with all the other causes of action in Plaintiff's complaint, no factual support is provided, and the allegation is just a rote recitation of legal conclusions. It is further telling that Plaintiff alleges, only “upon information and belief”, that Defendants received and retained said statements of account. An essential element of an account stated is an agreement with respect to the amount of the balance due’ ” Seneca Pipe & Paving Co., Inc. v. South Seneca Cent. Sch. Dist., 83 A.D.3d 1540, 1541, 921 N.Y.S.2d 752 (2011). In the instant matter, do not even allege that there was an agreement that amounts were due. It is telling that no evidence is provided in support. Further, and totally fatal to Plaintiffs next restatement of an improper contract action, “[A cause of action for account stated] cannot be used to create liability where none otherwise exists.” DL Marble & Granite Inc. vy. Madison Park Owner, LLC, 105 A.D.3d 479, 963 N.Y.S.2d 94 (1st Dept.,2013) citing Gurney, Becker & Bourne, Inc. v. Benderson Development -15- Co., Inc., 47 N.¥.2d 995, 996, 420 N.Y.S.2d 212, 394 N.E.2d 282 (1979). Where Defendants have no liability under Plaintiff's improper contract claim, Plaintiff cannot invent liability under an account stated theory. GS) Plaintiff’s Eighth Cause of Action is Unintelligible and is Brought Against a Party Which Does Not Currently Exist and is Not Even Included in the Caption. There simply is no way of discerning what cause of action is even alleged in Plaintiff's Eighth Cause of Action “As against the Estate of Betty Ast.” Furthermore, it is apparent that Plaintiff is unsure of who it is even attempting to sue as the “Estate of Betty Ast” is not even a party included in the caption of the matter. Instead of naming the Estate of Betty Ast, the Complaint instead names an unidentified “Fiduciary for the Estate of Betty Ast.” The fatal errors in the Eighth cause of action are very numerous, including making a indecipherable claim against a party which is not even included in the action, which does not yet exist, and which has not been joined in the action. As an initial matter, the purported eighth cause of action claims to be against the estate of Betty Ast, however, the Estate of Betty Ast is not included as a party in the caption. Instead, the caption lists an unidentified “Fiduciary for the Estate of Betty Ast,” apparently attempting to name someone in their individual capacity for actions done as an agent. Further, as noted in the accompanying affidavits, the Estate of Betty Ast has, as of this time, not yet been formed, and no executor has yet been appointed. As such, service of process against the estate was and remains impossible to achieve until an executor is appointed. -16- Additionally, the eighth cause of action is wholly un-intelligible as it is impossible to determine if this claim is based on a contract claim, tort claim, or even a quasi-contract claim. The claim only states that services were provided, and Plaintiff claims to be owed damages. As some of the language in the eighth cause of action suggests that this may be an account stated claim, then if this claim is simply a restating of Plaintiff's seven cause of action for an account stated, then this claim is invalid for the same reasons as Plaintiff's seventh cause of action, in addition to the above noted issues. H) In Addition to Dismissal of the Action, The Court Should Sanction Plaintiff and Award Costs to Defendants for Frivolous Litigation and for Seeking Damages Pursuant to a Contract Provision Explicitly Forbidden by Federal Law Governing Nursing Facilities Rule 130-1.1 governs the availability of sanctions and provides: (c) For purposes of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. In the instant matter, the Plaintiff has filed a claimed breach of contract claim against Mark Ast and Emest Ast, in their individual capacities, for breaching a contract which itself stated “The Responsible Party [Mark Ast and Ernest Ast] is not required to use his/her personal -17- resources to pay for such care.” Having no contractual basis for seeking damages against the Defendants, the Plaintiff instead filed a litany of inapplicable causes of action which simply restated Plaintiff's improper contract claim. These improper causes of action even include absolutely baseless and frivolous claims of fraud which do not even bother to identify any material misrepresentation, detrimental reliance, or even include a rote recitation the elements of the cause of action. These causes of action lack absolutely any merit in law and should result in sanctions. D Plaintiffs Claims Are Not a Ripe Controversy Additionally, the Complaint seems to allege that the Defendants did not assist with applications for coverage from third party payor(s) to meet the Resident’s obligations to the Plaintiff. However any such allegation is not a ripe controversy as a Medicare appeal is currently ongoing as noted in the accompanying affidavit of Mark Ast. -18- Ty ARGUMENT FOR MOTION FOR SUMMARY JUDGMENT A) Statement of Material Facts 1) Betty As was located and in the care of Jewish Home Lifecare from March 30", 2012 until July 26", 2012. 2) Betty Ast passed away on June 10, 2013. 3) Mark Ast and Ernest Ast are children of Betty Ast. 4) On or about March 30", 2012 Plaintiff provided Ernest Ast with a proposed agreement regarding services to be provided by Plaintiff with respect to Betty Ast. 5) At no time prior to its purported execution did Mark Ast review, sign or agree to the terms of the Agreement attached to the accompanying attorney Affirmation as part of Exhibit A. 6) On or about April 3, 2012, Ernest Ast executed the Agreement. 7) On or about April 3, 2012, based upon the mistaken belief that Mark Ast would later assent to and ratify the terms of the Agreement, Ernest Ast signed Mark Ast’s name to the Agreement. 8) Plaintiff agreed in the Agreement that Mark Ast and Ernest Ast would never be personally obligated to pay for whatever care was provided by Plaintiff to Betty Ast. 9) On or about November 5, 2014, Plaintiff filed the instant action, seeking a judgment holding Mark and Ernest Ast as personally responsible and -19- obligated to pay for services Plaintiff claims were provided to Betty Ast. B) Summary Judgement Standard CPLR 3212(b) states in relevant part that: “A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Winegradv. New York Unv. Med Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 ( 1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). It is well settled that "on a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and ... circumstances extrinsic -20- to the agreement or varying interpretations of the contract provisions will not be considered, where ... the intention of the parties can be gathered from the instrument itself." Maysek & Moran, Inc. v. S.G. Warburg & Co., Inc., 284 AD2d 203, 204 (1st Dept. 2001), citing Lake Constr. & Development Corp. v. City of New York, 211 AD2d 514, 515 (1st Dept. 1985). °) Full Summary Judgment Should be Granted in Favor of Defendants as the Instant Cause of Action is Contractually Forbidden The contract upon which Plaintiff is suing the Defendants in their individual capacity expressly states that Defendants are never personally responsible for any provided care. The Agreement attached to Plaintiff's Complaint states: “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.” (See Exhibit A to the accompanying Attorney Affirmation, Section 4.2 of Admission Agreement, referred to herein as the “Agreement”) This contract provision has absolutely no provisions or limitations which would serve as an exception to this agreement that Defendants are not personally responsible. Further, the contract is unambiguous and any claimed ambiguity must be construed against Plaintiff as the drafting party of this adhesion contract. However, the Plaintiff, in spite of the Agreement that states the Defendants are never personally responsible for the costs of any allegedly provided care, Plaintiff is now suing to “The Contract at issue defines the “Responsible Parties” as Mark Ast and Ernest Ast. -21- require Defendants to be personally responsible for the costs of any allegedly provided care. This contractually forbidden claim is made against the Defendant’s despite the fact that it would be in violation of Federal Law had the contract actually required the Defendant’s to be personally responsible for these debts. U.S. Code Title 42, Section 1396(c)(5)(A) provides that a nursing facility may not require a person to personally guarantee to answer for the as a condition of admission. In short, even if the contract required Defendant’s to be personally responsible for the cost of care provided to Betty Ast, which it does not, such a provision would be void as a violation of Federal law. Defendants are entitled to summary judgment as a matter of law on Plaintiff's first cause of action alleging breech of contract. Further, as noted, supra, in Defendants’ arguments concerning Defendants’ motion to dismiss, the additional causes of action in Plaintiff's complaint are merely improper restatements of Plaintiff's invalid contract claim. For the same reasons as enumerated in the above arguments regarding Defendants’ motion to dismiss, summary judgment should also be granted in favor of Defendants as to Plaintiffs second, third, fourth, fifth, sixth, seventh, and eighth causes of action. D) In the Event that Full Summary Judgment is Not Granted by the Court, The Court Should Grant Partial Summary Judgment in Favor of Mark Ast, Who Never Agreed to or Signed the Agreement at Issue, and Never Ratified the Contract. As noted in the accompanying affidavits of Mark Ast and Ernest Ast, Mark Ast never -22- agreed to the Agreement, never signed the Agreement, and never later ratified the Agreement. Ernest Ast signed Mark’s Ast’s name to the Agreement at issue under the incorrect assumption that Mark Ast would later ratify the agreement, and Mark Ast did not agree to the terms or ratify the terms As such, there was never a meeting of the minds between Mark Ast and Plaintiff, and no contract was made between Mark Ast and Plaintiff. As all causes of action are based upon an alleged breach of the Agreement or improper restatements of the contract claim cavorting as tort and quasi contract claims, partial summary judgment should be granted in favor of Mark Ast as to all causes of action. Vv) 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 _ January 6, 2015 we By: THOMAS©:C.LA DRIGAN COHEN, LaARBERA & LANDRIGAN, LLP Altorney for Mark Ast and Ernest Ast 40 ‘ithews Street, Suite 203 oshen, NY 10924 T: (845) 291-1900 -23-