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

1362
CA 15-00891
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


PRESBYTERIAN HOME FOR CENTRAL NY, INC.,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHELLE GOREA THOMPSON, FORMERLY KNOWN AS
MICHELLE GOREA FAGA,
DEFENDANT-APPELLANT-RESPONDENT,
ET AL., DEFENDANTS.


RALPH W. FUSCO, UTICA, FOR DEFENDANT-APPELLANT-RESPONDENT.

FELT EVANS, LLP, CLINTON (JAY G. WILLIAMS, III, OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Oneida County (Patrick F. MacRae, J.), entered February 13, 2015. The
order, inter alia, granted the motion of plaintiff to compel
disclosure, denied the cross motion of defendant Michelle Gorea
Thompson, formerly known as Michelle Gorea Faga, for summary judgment,
and denied the motion of plaintiff for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover a balance
of $69,713.59 allegedly due for room, board, and nursing services it
provided to Vivian Gorea, the now-deceased mother of defendant-
appellant-respondent (defendant), between August 1, 2010, and Gorea’s
death on April 9, 2011. When Gorea was admitted to plaintiff’s
facility in November 2008, defendant signed, among other things, a
“private pay agreement” naming her as Gorea’s “responsible party” and
obligating her to: (1) pay for Gorea’s care from Gorea’s resources;
(2) not transfer Gorea’s assets in a manner that would result in
Gorea’s ineligibility for Medicaid coverage; and (3) pay for Gorea’s
care if Medicaid coverage were denied “solely as a result of
[defendant’s] actions.” It is undisputed that, at the time Gorea was
admitted to plaintiff’s facility, there was approximately $54,000 in a
revocable trust owned by Gorea and that defendant was cotrustee of
that trust. It is also undisputed that Gorea was found to be
ineligible for Medicaid until October 2012 because of over $305,000 in
“uncompensated” transfers from her accounts, including from the
revocable trust, between July 2006 and January 2009.
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                                                         CA 15-00891

     After commencing this action, plaintiff moved to compel
disclosure from defendant of, inter alia, records relating to the
transfers made from the revocable trust. Defendant cross-moved for
summary judgment dismissing the amended complaint against her in her
individual capacity and as cotrustee of the revocable trust,
contending, among other things, that a “gratuitous” payment of over
$133,000 she made to plaintiff in August 2010 more than paid the
outstanding account balance sought by plaintiff. Plaintiff
subsequently moved for summary judgment on, inter alia, its cause of
action for breach of contract against defendant, individually.
Specifically, plaintiff sought in its motion a determination that
defendant breached the private pay agreement when, in her capacity as
cotrustee of the revocable trust, she used the $54,000 in the
revocable trust at the time of Gorea’s admission for purposes other
than paying plaintiff, as well as damages in the amount due on Gorea’s
account. Supreme Court granted plaintiff’s motion to compel
disclosure and, upon defendant’s stipulation, the court sua sponte
granted plaintiff summary judgment against defendant in her capacity
as executrix of Gorea’s estate. The court denied the cross motion of
defendant and motion of plaintiff for summary judgment. With respect
to the cause of action alleging breach of the private pay agreement,
the court found issues of fact whether defendant’s August 2010 payment
to plaintiff of over $133,000 “effectively reimbursed” plaintiff for
the approximately $54,000 that was transferred from the revocable
trust after Gorea’s admission to plaintiff’s facility. We affirm.

     A “responsible party” for a nursing home patient may “be held
personally liable for the cost of [a patient’s] care if it [is] shown
that [he or] she breached the terms of the agreement by impeding the
nursing home from collecting its fees from the [patient’s] funds or
resources over which [he or she] exercised control” (Sunshine Care
Corp. v Warrick, 100 AD3d 981, 982; see Troy Nursing & Rehabilitation
Ctr., LLC v Naylor, 94 AD3d 1353, 1354-1356, lv dismissed 19 NY3d
1045). Here, we conclude that plaintiff established its prima facie
entitlement to a determination that defendant breached the private pay
agreement by demonstrating defendant’s control over Gorea’s resources,
defendant’s agreement to pay plaintiff from those resources, and the
existence of approximately $54,000 in the revocable trust on the date
Gorea was admitted, which could have been, but was not, used to pay
plaintiff (see Sunshine Care Corp., 100 AD3d at 982). The record thus
establishes that defendant “accepted personal responsibility to
utilize her access to [Gorea’s] funds to pay for [Gorea’s] care and
then breached that agreement by failing to apply available assets to
pay [Gorea’s] nursing home bills” (Troy Nursing & Rehabilitation Ctr.,
94 AD3d at 1354-1355). We nevertheless conclude that the court
properly denied the cross motion and motion with respect to the cause
of action for breach of contract. Although plaintiff established that
defendant breached the private pay agreement, neither party eliminated
all triable issues of fact with respect to the amount of damages, if
any, suffered by plaintiff as a result of defendant’s breach. After
breaching the private pay agreement, defendant made a payment to
plaintiff of over $133,000 in August 2010, and we conclude that there
are issues of fact whether that payment was made “gratuitously,” as
defendant contends, and compensated plaintiff for any damages flowing
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                                                         CA 15-00891

from defendant’s breach, or whether uncompensated transfers made by
defendant from Gorea’s accounts prior to Gorea’s admission to
plaintiff’s facility were the sole cause of Gorea’s Medicaid
ineligibility. In the latter case, the private pay agreement would
obligate defendant to pay plaintiff the outstanding account balance
plaintiff now seeks, notwithstanding the payment made by defendant in
August 2010.

     Finally, we reject defendant’s contention that disclosure with
respect to Gorea’s accounts has been rendered moot by the entry of a
judgment against Gorea’s estate.




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
