Opinion
01252/11
11-15-2011
Queens Boulevard Extended Care Facility, Inc., Plaintiff, v. Florence Campanaro, Defendant.
Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP Defendant (no appearance): Florence Campanaro, Brooklyn, NY
Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP
Defendant (no appearance):
Florence Campanaro, Brooklyn, NY
, J.
In this fraudulent conveyance action, the plaintiff, operator of a rehabilitation and nursing care facility, seeks $17,320.59 in damages from the defendant for unpaid services rendered to her mother, a former resident of the facility. The defendant failed to appear and plaintiff now moves for leave to file a default judgment against her pursuant to CPLR 3215. The motion is denied since the plaintiff fails to support it with, inter alia, "proof of the facts constituting the claim" against the named defendant. See CPLR 3215(f).
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (see CPLR 3215[f]; Allstate Ins. Co. v Austin, 48 AD3d 720, 720)." Atlantic Cas. Ins,. Co. v RJNJ Services, Inc. — AD3d — , 2011 NY Slip Op 07786 (2nd Dept. Nov. 1, 2011). The proof submitted must establish a prima facie case. See Silberstein v Presbyterian Hosp., 95 AD2d 773 (2nd Dept. 1983); Central Mortgage Co. v Acevedo, — Misc 3d — , 2011 NY Slip Op 21378 (Sup Ct, Kings County October 27, 2011). In other words, "where a valid cause of action is not stated, the party moving for a default judgment is not entitled to the requested relief, even on default." Green v Dolphy Constr. Co. Inc., 187 AD2d 635, 636 (2nd Dept. 1992).
A claim for fraudulent conveyance pursuant to Debtor and Creditor Law § 273 requires proof that property was transferred without fair consideration and that the conveyance rendered the transferor insolvent. See Debtor and Creditor Law § 272, et seq.; Zanani v Meisels, 78 AD3d 823 (2nd Dept. 2010); Kreisler Borg Florman General Constr. Co., Inc. v Tower 56, LLC, 58 AD3d 694 (2nd Dept. 2009); Grace Plaza of Great Neck, Inc. v Heitzler, 2 AD3d 780 (2nd Dept. 2003). Debtor and Creditor Law § 275 provides that "every 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 will incur debts beyond his ability to pay as they mature, is fraudulent as to both present and future creditors." While sections 273 and 275 of the Debtor Creditor Law do not require proof of an actual intent to defraud (see Menaker v Alstaedter, 134 AD2d 412 [2nd Dept. 1987]), the claim must otherwise be pleaded with specificity, such that "the circumstances constituting the wrong [are] stated in detail." CPLR 3016(b); see High Tides, LLC v DeMichele, 88 AD3d 954 (2nd Dept. 2011). The purpose of that statute is "to inform a defendant of the complained-of acts" and the statute is not satisfied unless "the facts suffice to permit a reasonable inference' of the alleged misconduct." Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 (2009).
Initially, the court notes that the resident mother is not a named party and the affidavit of service filed by the movant here shows that the summons and complaint were purportedly served on the defendant daughter by substitute service at an address which appears to be another nursing facility. It states that service was made on the defendant at her "usual place of abode" by leaving a copy with " Jane Doe' refused to give name - recep" at "c/o Kessler Institute, 40 Heyward Street, Brooklyn, NY 11211" on February 2, 2011. The affidavit of service, dated February 3, 2011, is signed by a process server named "Supreme Allah." Assuming, without deciding, that this is sufficient proof of service, as well as proof of the defendant's default, a default judgment could not be entered since the plaintiff also fails to provide the requisite "proof of the facts constituting the claim" (CPLR 3215[f]) of fraudulent conveyance.
In support of the motion, the plaintiff relies upon the complaint, verified by James Clemenza, as "owner" of the plaintiff corporation, which alleges that the defendant's mother, Josephine Campanaro, was a resident of the plaintiff's facility from January of 2006 to March of 2009, and that she accrued an unpaid balance of $17,320.59 for nursing services rendered. The complaint further alleges that the resident was a recipient of Medicaid benefits and, as such, was required to turn over her Net Available Monthly Income (NAMI) to defray the cost of her care. According to the complaint, the defendant received and retained her mother's NAMI without turning it over to the plaintiff and, "just prior" to the resident's admission to the facility, wrongfully conveyed "all or some" of the resident's unspecified "assets and/or income away from the resident without fair consideration or for no consideration" and that these conveyances rendered the resident insolvent. No further details of these alleged transactions are provided. The complaint asserts four separate causes of action, all sounding in fraudulent conveyance.
"While a default admits all factual allegations of the complaint and all reasonable inferences therefrom, it does not admit legal conclusions which are reserved for the court's determination." Silberstein v Presbyterian Hosp., supra at 256; see Green v Dolphy Constr. Co. Inc., supra. Even if all the allegations in the instant complaint are deemed true, they are far too vague and conclusory to satisfy the pleading requirements of CPLR 3016(b). They do not state in any detail the circumstances constituting the alleged wrong or even permit any reasonable inference of misconduct. See Eurycleia Partners, LP v Seward & Kissel, LLP, supra; High Tides, LLC v DeMichele, supra. Nor do the remaining exhibits satisfy the plaintiff's burden on the motion.
In addition to the complaint, the plaintiff submits (1) a copy of a letter dated March 11, 2011, from counsel to defendant at the "Kessler Institute" address enclosing a copy of the summons and complaint, and an affidavit of service by mail; (2) an affidavit from its physician administrator, Dr. Jonathan Mawere, which merely restates selected portions of the complaint; (3) an invoice in the name of Josephine Campanaro, addressed to the defendant at the "Kessler Institute" address, dated January 31, 2010, showing the monthly NAMI to be $1,605.85 since February 2007, a total of $14,331.44 paid and a balance due of $17,319.69; (4) a letter from the New York City Human Resources Administration dated May 5, 2007, notifying the plaintiff that Josephine Campanaro's NAMI from Social Security benefits and pension proceeds had increased to $888 per month; and (5) several pages printed from an unidentified and untitled website which appears to list a real estate transaction between the defendant and her mother in 2000 or 2001 in regard to a property in Maspeth, NY, stating "Sale Amount - $0."
The plaintiff's submissions fall far short of establishing even that this defendant had any control over her mother's income or assets or that she was the recipient of any of her Social Security or pension benefits, or any other assets. The court notes that there is no allegation that the defendant herself had any agreement with the plaintiff so as to support any claim under a breach of contract theory (compare Putnam Nursing & Rehabilitation Center v Bowles, 239 AD2d 479 [2nd Dept. 1997]; Ruby Weston Manor v Vidal, 18 Misc 3d 1115(A) [Sup Ct, Kings County 2008]) or even that the defendant had her mother's power of attorney at any time. Compare Pinegrove Manor v Sheperd, 30 Misc 3d 1239(A)(Sup Ct, Nassau County 2010).
The brief conclusory affidavit of Dr. Mawere merely reiterates the allegations of the complaint, tracing the language of the statutes, without offering any of the detail or specificity required to establish the plaintiff's claims. Beyond simple repetition of the statutory elements, and unsupported and speculative allegations that the defendant somehow took her mother's assets, neither the verified complaint nor the affidavit of Dr. Mawere provides any detail or particular facts of any wrongdoing on the part of the defendant. The invoice and HRA letter, at most, permit an inference that the defendant received mail on behalf of her mother at times. This inference alone cannot support any claim of fraud. In this regard, it should be noted that the invoice and HRA letter submitted by the plaintiff undermine the plaintiff's own claim in that they are contradictory - if the HRA letter is accurate, then the invoice shows that the plaintiff paid approximately twice her monthly NAMI to them starting in May 2007. Moreover, the plaintiff merely appends these documents to the moving papers, without explanation.
Even if the website printout were found sufficient to show some sort of conveyance from the mother to the defendant daughter for less than fair consideration, this would not establish the plaintiff's claim since it shows the conveyance to have occurred in 2000 or 2001, five or six years prior to the date the defendant's mother was admitted to the plaintiff's facility (see Grace Plaza of Great Neck, Inc. v Heitzler, supra; Hillside Manor Rehabilitation and Extended Care Center, LLC v Dallu, 2011 NY Slip Op 21287 [App Term, 2nd, 11th & 13th Jud Dists, August 5, 2011]) and even well before the applicable Medicaid look-back period of three years. See 42 USC § 1396p.
Furthermore, the plaintiff's submissions is devoid of proof of any insolvency on the part of the defendant's mother, another requisite element of a fraudulent conveyance claim under Debtor Creditor Law § 273, or to establish that, at the time of the purported conveyance, the defendant's mother intended or believed that she would incur debts beyond her ability to pay, a requisite element of any claim under Debtor Creditor Law § 275. Indeed, these elements are addressed nowhere in the motion papers.
By failing to establish a prima facie case, the plaintiff fails to submit "proof of the facts constituting the claim" (CPLR 3215[f]) and, therefore, is not entitled to a default judgment against the defendant. See Silberstein v Presbyterian Hosp., supra; Green v Dolphy Constr. Co. Inc., supra.
Accordingly, it is,
ORDERED that the plaintiff's motion is denied in its entirety.
This constitutes the Decision and Order of the court.
__________________________
NANCY M. BANNON, J.C.C.