LOCAL 144, HOTEL, HOSP. v. CNH Mgt. Assoc., 87 Civ. 2778 (RWS).

• Decision Date: 22 September 1992
• Docket Number: No. 87 Civ. 2778 (RWS).,87 Civ. 2778 (RWS).
• Citation: 799 F. Supp. 1554
• Parties: LOCAL 144, HOTEL, HOSPITAL, NURSING HOME AND AFFILIATED SERVICES UNION, SEIU, AFL-CIO, Plaintiff, v. C.N.H. MANAGEMENT ASSOCIATES, INC., Marvin Neiman, individually and as proprietor of Concourse Nursing Home, Defendant.
• Court: U.S. District Court — Southern District of New York

799 F. Supp. 1554

LOCAL 144, HOTEL, HOSPITAL, NURSING HOME AND AFFILIATED SERVICES UNION, SEIU, AFL-CIO, Plaintiff, v. C.N.H. MANAGEMENT ASSOCIATES, INC., Marvin Neiman, individually and as proprietor of Concourse Nursing Home, Defendant.

No. 87 Civ. 2778 (RWS).

United States District Court, S.D. New York.

September 22, 1992.

Vladeck, Waldman, Elias & Engelhard, P.C., New York City (Daniel Engelstein, of counsel), for plaintiff.

Marvin Neiman, P.C., New York City (Theodore T. Mairanz, of counsel), Weinberg, Kaley & Pergament, P.C., Garden City, N.Y., for defendant Marvin Neiman.

OPINION

SWEET, District Judge.

The plaintiff Local 144, Hotel, Hospital, Nursing Home and Allied Services Union, SEIU, AFL-CIO ("Local 144") has by order to show cause moved to hold defendants C.N.H. Management Associates, Inc. ("CNH"), Marvin Neiman ("Neiman"), individual and as sole proprietor of Concourse Nursing Home ("Concourse") in contempt for failure to comply with the settlement Stipulation and Order signed by the parties on May 23, 1991 and so ordered by the Court on May 28, 1991 (the "Order"). Neiman has cross moved for relief from the provisions of the Order. For the reasons set forth below, the motion of Local 144 is granted and Neiman's cross motion is denied. Neiman is held in contempt of the Order and directed to pay $132,972.17 with interest within five (5) days of the filing of this order. Failure to do so will result in the assessment of a penalty of $500 a day for each day of noncompliance.

This action, hotly contested and long outstanding, was settled by the Order entered on the eve of trial. Both Local 144 and Neiman were ably represented by skilled counsel. The Order resolved the claims of Local 144 for past benefits and wages alleged to be owing to the employees at Concourse. This dispute was of long standing and arose out of the controversies between Local 144 and the nursing home operators, which has been described elsewhere in the opinions of September 16, 1987, May 23, 1989, and December 11, 1990 filed herein, familiarity with which is assumed. See Local 144 v. CNH Management Assocs., Inc., 752 F.Supp. 1195 (S.D.N.Y.1990); Local 144 v. CNH Management Assocs., Inc., 713 F.Supp. 680 (S.D.N.Y. 1989); Local 144 v. CNH Management Assocs., Inc., 669 F.Supp. 632 (S.D.N.Y.1987). A seriously complicating factor was, and remains, the involvement of the appropriate agencies of the State of New York as a result of the process by which the defendants receive Medicaid reimbursement, which constitutes 90% of the revenue of Neiman's nursing home.

Paragraph 7 of the Order provides as follows:

7. If the State monies actually received are less than the Settlement Amount, Neiman shall pay the difference between the Settlement Amount and the State monies actually received in accordance with the following schedule:

(a) to the extent that the State monies are actually received and those monies are less than Seven Million, Three Hundred Thousand ($7,300,000) Dollars, then

(i) the difference between Seven Million, Three Hundred Thousand ($7,300,000) Dollars and the State monies actually received shall be paid in full no later than ten (10) days after receipt of the last payment of the State monies, but in any event no later than ninety (90) days from the date of the execution of this Stipulation,

(ii) an additional Two Hundred Thousand ($200,000) Dollars, shall be paid no later than twelve (12) months after the date of the execution of this Stipulation, and

(iii) the remaining unpaid balance of One Hundred Thirty-Five Thousand ($135,000) Dollars shall be paid no later than eighteen (18) months after the date of the execution of this Stipulation.

(b) To the extent that the State monies actually received are less than Seven Million, Five Hundred Thousand ($7,500,000) Dollars, but more than Seven Million, Three Hundred Thousand ($7,300,000) Dollars, then

(i) the difference between Seven Million, Five Hundred Thousand ($7,500,000) Dollars and the State monies actually received shall be paid no later than twelve (12) months after the date of the execution of this Stipulation,

(ii) the remaining unpaid balance of One Hundred Thirty-Five Thousand ($135,000) Dollars shall be paid no later than eighteen (18) months after the date of the execution of this Stipulation,

(c) To the extent that the State monies actually received are less than Seven Million, Six Hundred ThirtyFive Thousand ($7,635,000) Dollars, but greater than Seven Million, Five Hundred Thousand ($7,500,000) Dollars, then the difference between the Settlement Amount and the State monies actually received shall be paid no later than eighteen (18) months after the date of the execution of this stipulation.

The amount of the installments varied depending upon the size of the payment that the State of New York had committed itself to make if a settlement were reached between plaintiff and Neiman. Pursuant to a letter agreement with Neiman dated October 6, 1989, the New York State Department of Health ("Department of Health") had agreed (a) to process certain of Neiman's Medicaid rate appeals (including those premised on Neiman paying, as part of the settlement, the obligations which the Union was seeking to enforce in this action), (b) to implement a retroactive rate adjustment and (c) to make a lump sum payment reflecting that retroactive adjustment provided that Neiman settled all of his outstanding obligations to plaintiff (a necessary precondition to the rate appeals). Under the terms of the Stipulation, Neiman agreed to apply toward payment of the Settlement Amount all the Medicaid monies (up to $7,635,000) he was to receive as a result of the Department of Health processing those Medicaid rate appeals.

Paragraph 16 of the Order provided that Neiman had the right to relieve himself of the obligation to pay the initial payment of $7,300,000, as well as the other obligations under the Order, if the aforementioned lump sum payment by the State was less than $7,100,000, after deduction for amounts Neiman otherwise owed the State on account of various audits that had been completed by the time payment was to be maid.

To relieve himself of that obligation, Neiman was required to seek a declaration from the Court that the Settlement was null and void.

On or about August 13, 1991, the New York State Department of Social Services issued a check in the amount of $7,367,027.83 (the "State monies") to "Sterling National Bank & Trust as Trustee for Concourse Nursing Home and Local 144," the Escrow Agent designated under the Stipulation to receive and distribute the Settlement monies.

The condition precedent to Neiman seeking a declaration of relief therefor had not occurred. The lump sum payment by the state not only exceeded the minimum requirement, it was greater than...