Sunshine Care Corp. v. Warrick

• Decision Date: 28 November 2012
• Citation: 100 A.D.3d 981,957 N.Y.S.2d 122,2012 N.Y. Slip Op. 08111
• Parties: SUNSHINE CARE CORP., doing business as Hempstead Park Nursing Home, appellant, v. Betty WARRICK, respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 981

957 N.Y.S.2d 122

2012 N.Y. Slip Op. 08111

SUNSHINE CARE CORP., doing business as Hempstead Park Nursing Home, appellant,

v.Betty WARRICK, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 28, 2012.

Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Lake Success, N.Y. (Susan Mauro of counsel), for appellant.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action to recover damages for breach of contract and on an account stated, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered July 6, 2010, which denied its motion for summary judgment on the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on the cause of action to recover damages for breach of contract, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff, Sunshine Care Corp., doing business as Hempstead Park Nursing Home (hereinafter the nursing home), commenced the instant action to recover a balance of $64,616 incurred for the room, board, and skilled nursing services provided to the defendant's now-deceased husband who resided at the nursing home from November 1, 2006, until his discharge on September 21, 2007. In its motion for summary judgment on the complaint, the nursing home argued that the defendant breached the nursing home admission agreement, which she executed as her husband's designated representative and, thus, is liable for the balance owing. The Supreme Court denied the motion, and the nursing home appeals.

Pursuant to the Nursing Home Reform Act, “[w]ith respect to admissions practices, a skilled nursing facility must ... not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility” (42 USC § 1395i–3[c][5] [A][ii] ). However, with respect to contracts with legal representatives, “[s]ubparagraph (A)(ii) shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident's income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident's income or resources for such care” (42 USC § 1395i–3[c][5][B] [ii] ). Here, the admission agreement did not require the defendant to guarantee payment for her husband's care as a condition of his admission to, or his continued stay in, the nursing home. The agreement stated, inter alia, that the designated representative agrees to “provide payment from the resident's income or resources to the extent that he/she has access to such income and resources without the designated representative incurring personal financial liability ” (emphasis added). However, the agreement goes on to state that the designated representative would incur personal liability “if her actions or omissions have caused or contributed to the nonpayment of Facility's fees,” and that such actions or omissions included “(i) a failure to utilize the resident's funds...