        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

139
CA 13-01223
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


AARON MANOR REHABILITATION AND NURSING
CENTER, LLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GRACE DIOGO AND ANNETTE LOUIS,
DEFENDANTS-RESPONDENTS.


LAW OFFICE OF HEIDI E. LADUCA, ESQ., WEBSTER (HEIDI E. LADUCA OF
COUNSEL), FOR PLAINTIFF-APPELLANT.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered September 4, 2012. The order, inter alia,
denied the motion of plaintiff for summary judgment on the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting those parts of the motion
for summary judgment on the first and second causes of action against
defendant Grace Diogo and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff commenced this action seeking judgment in
the amount of $62,344.71 for services rendered in caring for defendant
Grace Diogo. Plaintiff asserted causes of action for breach of
contract, an account stated, unjust enrichment, and fraudulent
conveyance against Diogo and defendant Annette Louis, the niece who
signed the “long-term admission agreement” (hereafter, contract) as
Diogo’s power of attorney (POA). It is undisputed that Louis signed
the contract in February 2011 and agreed to utilize Diogo’s assets to
pay for Diogo’s care and to apply for Medicaid assistance if
necessary. It is also undisputed that Medicaid funding was not
approved for a portion of Diogo’s care based upon an uncompensated
transfer of assets in February 2009, when Diogo gave Louis and Louis’s
sister $24,000 each.

     We conclude that, inasmuch as defendants concede that Diogo is
liable for the services rendered to her, Supreme Court erred in
determining that defendants raised an issue of fact sufficient to
defeat the motion with respect to Diogo on the first and second causes
of action, for breach of contract and an account stated. We therefore
modify the order accordingly. We conclude with respect to Louis that,
although plaintiff established its entitlement to judgment with
respect to the first and second causes of action, the court properly
determined that defendants raised an issue of fact sufficient to
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                                                         CA 13-01223

defeat the motion on those causes of action against Louis. With
respect to the cause of action for breach of contract, Louis submitted
an affidavit stating that she exhausted Diogo’s assets and then
applied for Medicaid for Diogo, in conformance with the terms of the
contract (see generally Zuckerman v City of New York, 49 NY2d 557,
562). With respect to the cause of action for an account stated, both
Louis and her attorney submitted affidavits stating that they
contacted plaintiff and objected to the implicit claim that Louis was
personally liable for the amount due. “ ‘There can be no account
stated where . . . any dispute about the account is shown to have
existed’ ” (Hull v City of N. Tonawanda, 6 AD3d 1142, 1142) and, here,
defendants established that there was a dispute about the account.

     We conclude that the court properly denied that part of the
motion with respect to the third cause of action, for unjust
enrichment, but our reasoning differs from that of the court.
Plaintiff alleges that defendants were unjustly enriched by the care
provided to Diogo for which there was no compensation, but there can
be no unjust enrichment “because the matter is controlled by contract”
(Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572; see Leo J.
Roth Corp. v Trademark Dev. Co. [appeal No. 2], 90 AD3d 1579, 1581).
Plaintiff therefore failed to establish its entitlement to judgment on
that cause of action (see generally Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853).

     Finally, the court properly denied that part of the motion with
respect to the fourth cause of action, for fraudulent conveyance.
Even assuming, arguendo, that plaintiff established that the transfer
of funds from Diogo to Louis and Louis’s sister in 2009 constituted a
fraud pursuant to Debtor and Creditor Law § 275, we conclude that
defendants raised an issue of fact sufficient to defeat the motion.
Debtor and Creditor Law § 275 provides that “[e]very conveyance made
and every obligation incurred without fair consideration when the
person making the conveyance or entering into the obligation intends
or believes that he [or she] will incur debts beyond his or [her]
ability to pay as they mature, is fraudulent as to both present and
future creditors.” Defendants established that, as early as 2003,
Diogo had an account entitled “Grace Diogo, in trust for” Louis and
Louis’s sister, and the account was closed at the time Diogo gave the
proceeds to her nieces in 2008. Defendants also established that
Diogo had resided in Portugal since 1987 and that in 2006 she advised
her family in Rochester that she would not again visit because of the
difficulty she had in traveling alone at age 82. She returned to
Rochester in 2010, however, because her husband was critically ill and
his family in Portugal could not care for both Diogo and her husband.
At the time of the transfer, Diogo had in excess of $139,000 in
another account with the same bank, and defendants thus raised an
issue of fact whether the transfer of funds in 2008 rendered Diogo
insolvent with respect to the amount owed to plaintiff (see § 273;
Grace Plaza of Great Neck v Heitzler, 2 AD3d 780, 781; cf. Chamberlain
v Amato, 259 AD2d 1048, 1049-1050).
Entered: February 14, 2014                      Frances E. Cafarell
                                                Clerk of the Court
