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INDEX NO. 151788/2014
FILED: NEW YORK COUNTY CLERK 04/18/2014)
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/18/2014
SUPREME COL RT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-. pe ein en nn a Sei,
NCI CA RDINAL COOKE NURSING HOME, Index No.: 151788/14
Plaintiff, AFFIRMATION IN
SUPPORT OF
PLAINTIFF’S MOTION
FOR SUMMARY
JUDGMENT
- against -
ROBERT ROHR,
Defendant.
SSE RS eS emer ennnnnnnnennnnnn
SHELBY E. NEISS, an attorney duly admitted to the practice of law in the State of New
York, hereby affirms the following to be true pursuant to CPLR § 2106 and under the penalties
of perjury states that:
1 I am an associate attorney with the Law Offices of Wolf Haldenstein Adler
Freeman & Herz, LLP, attorneys for TERENCE CARDINAL COOKE (hereinafter referred to as
Plaintiff"), and I am fully familiar with the facts and circumstances herein.
2 I make this Affirmation in support of Plaintiff's instant Motion seeking an Order
granting Summary Judgment in favor of the Plaintiff and against Defendant, ROBERT ROHR
(hereinafter referred to as "Defendant").
PROCEDURAL HISTORY
%
3 This action was commenced by filing the summons and complaint with the court
clerk. Copies of the Summons and Complaint are annexed hereto as Exhibit "A".
4 Thereafter, on or about March 11, 2014, Defendant was served with a copy of the
pleadings pursuant to CPLR 308(1). A copy of the Affidavit of Service is annexed hereto as
Exhibit "B".
75 Issue was joined by the receipt of the Defendant's Answer dated March 25, 2014.
A copy of Defendant's Answer is annexed hereto as Exhibit "C".
6 Plaintiff now moves this Court for an Order, pursuant to CPLR Rule 3212
granting Summary Judgment in favor of the Plaintiff and against the Defendant upon the ground
that there are no triable issues of fact, and that Plaintiff is entitled to the entry of Judgment
against Defendant as a matter of law.
STANDARD FOR GRANTING SUMMARY JUDGMENT
7 On a Motion for Summary Judgment, the test to be applied is whether triable
issues of fact exist or whether on the proof submitted Judgment can be granted to a party as a
matter of law. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853 (1974).
8 The movant must set forth a prima facie showing of entitlement to Judgment as a
matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of
fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986).
=
9. Once the movant sets forth a prima facie case, the burden shifts to the opponent of
the Motion to produce evidentiary proof in admissible form sufficient to establish the existence
of material issues of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 427 N.Y.S.2d 595,
404 N.E.2d 718 (1980).
10. It is respectfully submitted that where, as here, a thorough examination of the
merits clearly demonstrates the absence of any triable issues of fact, a Motion for Summary
Judgment should be granted. VaMattan v. Thomas, 205 A.D.2d 615, 61 N.Y.S.2d 220 (2nd
Dept., June 1994),
ARGUMENT
11. As can be seen from the attached Affidavit of Annmarie Covone, Senior Vice
President and Chief Financial Officer of Plaintiff, sworn to on April 8, 2014 (“Plaintiff's
Affidavit”), Plaintiff is a nursing home facility duly authorized to provide room, board, skilled
nursing care and other health care services to residents requiring such services (See 94 of
Plaintiff's Affidavit).
12. On or about the August 14, 2012, Defendant, for good and valuable consideration,
entered into an Admission Agreement with Plaintiff, and agreed to abide by its rules, conditions,
covenants, duties and responsibilities pursuant to the expressed terms as set forth in the
Admission Agreement. In reliance on Defendant’s agreement to the terms. conditions.
covenants. duties and responsibilities, Plaintiff provided nursing home services to Defendant.
(See, Admission Agreement dated August 14, 2012, Plaintiff's Affidavit, Exhibit “A”.)
-3-
13. Pursuant to the Admission Agreement, Plaintiff provided Defendant with room,
board, skilled nursing care and other health care services from on or about August 13, 2012
through September 13, 2012 (See 45 of Plaintiff's Affidavit).
14. Pursuant to the Admission Agreement, Defendant agreed to take all measures
necessary to ensure continuity of payment to Plaintiff.
15. Defendant breached the agreement by failing to make all payments to Plaintiff,
leaving Plaintiff with an unpaid balance due and owing in the amount of $29,333.75.
16. Due to Defendant’s breach of the Admission Agreement entered into between
222
Plaintiff and Defendant, Plaintiff has been damaged in the amount of $29, 333. 75
17. Upon the application of all relevant credits to the amount due, the balance
remaining on such account for services rendered by Plaintiffto Defendant is $29,333.75. (See 47
of Plaintiff's Affidavit)
18. No part of said balance has been paid, although payment thereof has been duly
and repeatedly demanded.
19. Defendant’s Verified Answer contains blanket denials, and no valid affirmative
defense. Defendant alleges that he was “misled” by an individual at St. Luke’s Roosevelt
Hospital, a non-party to this action; however, Defendant has not alleged any claims against St.
Luke’s Roosevelt Hospital, nor any agent thereof. Defendant does not deny that he signed the
-4-
Admission Agreement with Plaintiff, nor that he was admitted to Plaintiff facility. In light of the
token nature of defendant’s Answer, Defendant has obviously failed to raise a triable issue of
fact concerning Plaintiff's entitlement as a matter of law to the relief sought in the Complaint.
20. CPLR Rule 3212(b) provides that a motion for summary judgment shall be
granted if, upon all the papers and proof submitted, a cause of action is established sufficiently
“to warrant the court as a matter of law” to direct judgment in favor of the moving party. CPLR
Rule 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d
595, 597 (1980).
21. It is uncontroverted that Robert Rohr is responsible for the payment demanded
herein, and that Defendant is thus indebted to Plaintiff in the sum of $29,333.75 together with
interest thereon at the legal rate.
WHEREFORE, it is respectfully requested that this Court issue an Order
awarding summary judgment in Plaintiff's favor against Defendant, in the sum of $29,333.75
together with interest. costs, and disbursements of this action, and directing such other and
further relief as the Court may deem just and proper.
=
Dated: New York, New York
April 11, 2014
sy
4 SHELBY E. NEISS
~5-
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INDEX NO. 151788/2014 FILED: NEW YORK COUNTY CLERK 04/18/2014) NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/18/2014 SUPREME COL RT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -. pe ein en nn a Sei, NCI CA RDINAL COOKE NURSING HOME, Index No.: 151788/14 Plaintiff, AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - against - ROBERT ROHR, Defendant. SSE RS eS emer ennnnnnnnennnnnn SHELBY E. NEISS, an attorney duly admitted to the practice of law in the State of New York, hereby affirms the following to be true pursuant to CPLR § 2106 and under the penalties of perjury states that: 1 I am an associate attorney with the Law Offices of Wolf Haldenstein Adler Freeman & Herz, LLP, attorneys for TERENCE CARDINAL COOKE (hereinafter referred to as Plaintiff"), and I am fully familiar with the facts and circumstances herein. 2 I make this Affirmation in support of Plaintiff's instant Motion seeking an Order granting Summary Judgment in favor of the Plaintiff and against Defendant, ROBERT ROHR (hereinafter referred to as "Defendant"). PROCEDURAL HISTORY % 3 This action was commenced by filing the summons and complaint with the court clerk. Copies of the Summons and Complaint are annexed hereto as Exhibit "A". 4 Thereafter, on or about March 11, 2014, Defendant was served with a copy of the pleadings pursuant to CPLR 308(1). A copy of the Affidavit of Service is annexed hereto as Exhibit "B". 75 Issue was joined by the receipt of the Defendant's Answer dated March 25, 2014. A copy of Defendant's Answer is annexed hereto as Exhibit "C". 6 Plaintiff now moves this Court for an Order, pursuant to CPLR Rule 3212 granting Summary Judgment in favor of the Plaintiff and against the Defendant upon the ground that there are no triable issues of fact, and that Plaintiff is entitled to the entry of Judgment against Defendant as a matter of law. STANDARD FOR GRANTING SUMMARY JUDGMENT 7 On a Motion for Summary Judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted Judgment can be granted to a party as a matter of law. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853 (1974). 8 The movant must set forth a prima facie showing of entitlement to Judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). = 9. Once the movant sets forth a prima facie case, the burden shifts to the opponent of the Motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). 10. It is respectfully submitted that where, as here, a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact, a Motion for Summary Judgment should be granted. VaMattan v. Thomas, 205 A.D.2d 615, 61 N.Y.S.2d 220 (2nd Dept., June 1994), ARGUMENT 11. As can be seen from the attached Affidavit of Annmarie Covone, Senior Vice President and Chief Financial Officer of Plaintiff, sworn to on April 8, 2014 (“Plaintiff's Affidavit”), Plaintiff is a nursing home facility duly authorized to provide room, board, skilled nursing care and other health care services to residents requiring such services (See 94 of Plaintiff's Affidavit). 12. On or about the August 14, 2012, Defendant, for good and valuable consideration, entered into an Admission Agreement with Plaintiff, and agreed to abide by its rules, conditions, covenants, duties and responsibilities pursuant to the expressed terms as set forth in the Admission Agreement. In reliance on Defendant’s agreement to the terms. conditions. covenants. duties and responsibilities, Plaintiff provided nursing home services to Defendant. (See, Admission Agreement dated August 14, 2012, Plaintiff's Affidavit, Exhibit “A”.) -3- 13. Pursuant to the Admission Agreement, Plaintiff provided Defendant with room, board, skilled nursing care and other health care services from on or about August 13, 2012 through September 13, 2012 (See 45 of Plaintiff's Affidavit). 14. Pursuant to the Admission Agreement, Defendant agreed to take all measures necessary to ensure continuity of payment to Plaintiff. 15. Defendant breached the agreement by failing to make all payments to Plaintiff, leaving Plaintiff with an unpaid balance due and owing in the amount of $29,333.75. 16. Due to Defendant’s breach of the Admission Agreement entered into between 222 Plaintiff and Defendant, Plaintiff has been damaged in the amount of $29, 333. 75 17. Upon the application of all relevant credits to the amount due, the balance remaining on such account for services rendered by Plaintiffto Defendant is $29,333.75. (See 47 of Plaintiff's Affidavit) 18. No part of said balance has been paid, although payment thereof has been duly and repeatedly demanded. 19. Defendant’s Verified Answer contains blanket denials, and no valid affirmative defense. Defendant alleges that he was “misled” by an individual at St. Luke’s Roosevelt Hospital, a non-party to this action; however, Defendant has not alleged any claims against St. Luke’s Roosevelt Hospital, nor any agent thereof. Defendant does not deny that he signed the -4- Admission Agreement with Plaintiff, nor that he was admitted to Plaintiff facility. In light of the token nature of defendant’s Answer, Defendant has obviously failed to raise a triable issue of fact concerning Plaintiff's entitlement as a matter of law to the relief sought in the Complaint. 20. CPLR Rule 3212(b) provides that a motion for summary judgment shall be granted if, upon all the papers and proof submitted, a cause of action is established sufficiently “to warrant the court as a matter of law” to direct judgment in favor of the moving party. CPLR Rule 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595, 597 (1980). 21. It is uncontroverted that Robert Rohr is responsible for the payment demanded herein, and that Defendant is thus indebted to Plaintiff in the sum of $29,333.75 together with interest thereon at the legal rate. WHEREFORE, it is respectfully requested that this Court issue an Order awarding summary judgment in Plaintiff's favor against Defendant, in the sum of $29,333.75 together with interest. costs, and disbursements of this action, and directing such other and further relief as the Court may deem just and proper. = Dated: New York, New York April 11, 2014 sy 4 SHELBY E. NEISS ~5-