                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     519208
________________________________

SETON HEALTH AT SCHUYLER RIDGE
   RESIDENTIAL HEALTH CARE,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JEANNE DZIUBA,
                    Appellant.
________________________________


Calendar Date:   February 18, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


     Theresa M. Suozzi, Saratoga Springs, for appellant.

      Iseman, Cunningham, Riester & Hyde, LLP, Albany (Marc A.
Antonucci of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered April 11, 2014 in Saratoga County, which partially
granted plaintiff's motion for summary judgment.

      Defendant, a quadriplegic, resided at a licensed nursing
home facility operated by plaintiff in the Town of Clifton Park,
Saratoga County from January 8, 2010 through November 23, 2011.
Alleging that defendant refused to pay for the care, treatment
and housing it provided to her from January 8, 2010 through
December 31, 2010, plaintiff commenced this action for breach of
contract, account stated and quantum meruit, seeking to recover
$112,592.90 in unpaid invoices. After issue was joined,
plaintiff moved for summary judgment. Supreme Court granted
plaintiff's motion with respect to that part of its breach of
                               -2-                519208

contract claim that sought recovery for the cost of defendant's
room and board at the facility during the relevant time period,
and awarded plaintiff judgment in the amount of $110,087.90, plus
counsel fees. The court denied plaintiff's motion to the extent
that it sought to recover payment for therapy it allegedly
provided to defendant. Defendant appeals.

      Plaintiff, as the proponent of the motion, bore the initial
burden of establishing entitlement to judgment as a matter of law
on its breach of contract claim (see Alvarez v Prospect Hosp., 68
NY2d 320, 324 [1986]; Robison v Sweeney, 301 AD2d 815, 817
[2003]). In support of its motion, plaintiff offered, among
other things, an October 2009 durable general power of attorney
appointing defendant's mother, Patricia Dziuba, as her attorney-
in-fact as well as a January 8, 2010 admission agreement signed
by Dziuba. Pursuant to the agreement, defendant agreed to pay
for, or arrange for the timely payment of, the "daily basic rate"
for a semi-private room and to be responsible for this payment
during the pendency of any Medicaid application or in the event
that any such application was denied. Plaintiff also submitted a
statement of charges, various invoices and the affidavits of its
executive director and resident accounts manager confirming that
defendant resided in a semi-private room at the facility from
January 8, 2010 through December 31, 2010, during which time she
was not covered by Medicaid.1 These submissions further
established that the facility's daily rate for a semi-private
room was $305 from January 8, 2010 through June 30, 2010, and
$320 from July 1, 2010 through December 31, 2010, resulting in a
total amount of $103,865 due and owing for defendant's stay at
the facility for the relevant period.

      This evidence was sufficient to establish a prima facie
case for breach of contract with regard to the amount due and
owing for plaintiff's room and board at the facility (see
Education Plus, Inc. v Glasser, 112 AD3d 1125, 1125-1126 [2013];
George S. May Intl. Co. v Thirsty Moose, Inc., 19 AD3d 721, 722
[2005]; Convenient Med. Care v Medical Bus. Assoc., 291 AD2d 617,


     1
        Defendant's initial application for Medicaid was denied,
and she was not covered by Medicaid until January 1, 2011.
                              -3-                519208

618 [2002]). Contrary to defendant's contention, the failure of
the agreement to specify the "daily basic rate" for a semi-
private room does not render the agreement so indefinite as to be
unenforceable. "[A] price term is not necessarily indefinite
because the agreement fails to specify a dollar figure, or leaves
fixing the amount for the future, or contains no computational
formula" (Cobble Hill Nursing Home v Henry & Warren Corp., 74
NY2d 475, 483 [1989], cert denied 498 US 816 [1990]; accord
Village of Lansing v Triphammer Dev. Co., 193 AD2d 919, 920
[1993]). Rather, where at the time of the agreement the parties
have manifested their intent to be bound, a price term will be
sufficiently definite if it can be defined by reference to, among
other things, "an objective extrinsic event, condition or
standard," or by the subsequent conduct of the parties (Joseph
Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 110 [1981];
see Matter of 166 Mamaroneck Ave. Corp. v 151 E. Post Rd. Corp.,
78 NY2d 88, 91 [1991]; Cobble Hill Nursing Home v Henry & Warren
Corp., 74 NY2d at 483; Capital Dist. Enters., LLC v Windsor Dev.
of Albany, Inc., 53 AD3d 767, 769 [2008]). Here, the language of
the agreement is sufficiently clear to manifest the parties'
intention to be bound and the price term can be objectively
supplied by reference to the facility's daily rate during the
relevant time, which was set forth in periodic invoices sent to
defendant (see Protection Indus. Corp. v Kaskel, 262 AD2d 61, 62
[1999]; see also Provident Bay Rd., LLC v NYSARC, Inc., 117 AD3d
1356, 1359 [2014]; Capital Dist. Enters., LLC v Windsor Dev. of
Albany, Inc., 53 AD3d at 769). Accordingly, the burden shifted
to defendant to demonstrate the existence of a triable issue of
fact with respect to her contractual liability for her room and
board at the facility during the relevant time (see Zuckerman v
City of New York, 49 NY2d 557, 562 [1980]; Heritage Springs Sewer
Works, Inc. v Boghosian, 61 AD3d 1038, 1040-1041 [2009]).

      In opposition to the motion, defendant did not deny that
she occupied a semi-private room at the facility from January 8,
2010 through December 31, 2010, that she was not covered by
Medicaid during that time or that she has failed to pay for or
arrange for the payment of her stay at the facility for the
period in dispute. Further, although she claims that she was
unaware of the daily rate for a semi-private room at the time of
her admission to the facility and that, once she received a bill,
                              -4-                519208

she objected to the charges by phone, defendant does not allege
that she agreed to a daily rate other than that set forth in the
statement of charges and invoices or otherwise demonstrate that
she entered into the agreement with a different understanding as
to the price term. Defendant's contention that Dziuba was acting
individually, rather than as her agent, when she signed the
agreement is both unsubstantiated and belied by the agreement
itself.2 Moreover, by accepting the benefits of the agreement
for nearly two years, defendant is deemed to have ratified the
agreement (see Beutel v Beutel, 55 NY2d 957, 958 [1982];
Provident Bay Rd., LLC v NYSARC, Inc., 117 AD3d at 1359; Hoskins
v Skojec, 265 AD2d 706, 707 [1999], lv denied 94 NY2d 758
[2000]). Accordingly, defendant's submissions failed to raise a
triable issue of fact on that portion of plaintiff's breach of
contract claim seeking the recovery of $103,865 for defendant's
room and board at the facility.

      With respect to that portion of plaintiff's breach of
contract claim that sought recovery for monthly assessments
mandated by the "Health Facility Cash Assessment program" (see
Public Health Law § 2807-d), however, summary judgment was
improperly awarded to plaintiff. Simply put, there is nothing in
the agreement rendering defendant responsible for payment of this
monthly assessment. As plaintiff failed to demonstrate its
entitlement as a matter of law to defendant's payment of such
monthly assessments, which totaled $6,222.90 during the relevant
period, the motion should have been denied to that extent,
regardless of the sufficiency of defendant's opposing papers (see
Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; Cole v


    2
        Defendant also argues, for the first time on appeal, that
Dziuba lacked authority to enter into the agreement on her behalf
because she had renounced her power of attorney prior to the
execution of the agreement. Not only is this claim unpreserved
for our review (see Liere v State of New York, 123 AD3d 1323,
1323-1324 [2014]; Matter of LaBarbera v Town of Woodstock, 55
AD3d 1093, 1094 [2008]), but it is also belied by the 2009 power
of attorney appointing Dziuba as defendant's attorney-in-fact and
documentary evidence that Dziuba resigned as her attorney-in-fact
in March 2010, well after the execution of the agreement.
                                -5-                  519208

Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285
[2014]).

      Finally, we reject defendant's contention that plaintiff's
summary judgment motion was premature. Defendant had ample time
and opportunity to conduct discovery during the roughly 21 months
between joinder of issue and plaintiff's motion, and did not
proffer an adequate excuse for her failure to do so (see Meath v
Mishrick, 68 NY2d 992, 994-995 [1986]; Ullmannglass v Oneida,
Ltd., 121 AD3d 1371, 1373 [2014]). Nor has defendant made the
requisite showing that discovery would yield material and
relevant evidence sufficient to defeat the motion (see CPLR 3212
[f]; Hobler v Hussain, 111 AD3d 1006, 1009 [2013]; 2 N. St. Corp.
v Getty Saugerties Corp., 68 AD3d 1392, 1396 [2009], lv denied 14
NY3d 706 [2010]).

     Lahtinen, Garry and Lynch, JJ., concur.



      ORDERED that the   order is modified, on the law, without
costs, by reversing so   much thereof as granted that part of
plaintiff's motion for   summary judgment on its breach of contract
claim seeking recovery   for certain monthly assessments; motion
denied to that extent;   and, as so modified, affirmed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court
