Defendant is the daughter of Jane Hitchcock (hereinafter the decedent), who was a resident of plaintiff's skilled nursing facility (hereinafter the Facility) from April 12, 2011 until her death on February 20, 2013. On April 15, 2011, defendant signed an "Admissions Agreement" (hereinafter the Agreement) with plaintiff as the "Responsible Party" for decedent, with Responsible Party being defined as follows:

"[T]he person chosen by the resident who is primarily responsible to assist the [r]esident in meeting his/her obligations under this Agreement. Unless the Responsible Party is also the [r]esident's spouse, the [R]esponsible Party is not obligated to pay for the cost of the [r]esident's care from his/her own funds.

"By signing this Agreement, however, the [R]esponsible Party personally guarantees continuity of payment from the [r]esident's funds or from third-party payors; to meet the [r]esident's obligations under this Agreement".

The Agreement further provides, in pertinent part:

"[T]he [Responsible Party] personally and independently guarantee[s] continuity of payment to the Facility for the cost of the [r]esident's care. Unless the [Responsible Party is] otherwise obligated by law to pay for the [r]esident's care, as the [r]esident's spouse may be, [he/she is] not required to use [his/her] personal resources to pay for such care. [*2]However, if necessary to meet the payment obligations to the Facility and without incurring the obligation to pay from the [Responsible Party's] own funds, the [Responsible Party] personally guarantee[s] payment of the daily basic rate and pharmacy charge to the [F]acility and the [F]acility's vendor pharmacy . . . until the month in which the [r]esident's Medicaid eligibility covers such charges. . . . .

Finally, insofar as damages are concerned, the Agreement provides:

"The [Responsible Party] agree[s] to use [his/her] personal resources if necessary to pay damages to the Facility for breach of [his/her] personal obligations set forth in this Agreement. If the [Responsible Party] breaches his/her personal obligations to the Facility; and fails to pay the private rate, the [net available monthly income], or the deductibles and co-insurance from the [r]esident's funds to which [he/she has] access; . . . the [Responsible Party] personally and independently agree[s] to pay damages caused by such failure, including reasonable attorney fees."

Following her admission to the Facility, decedent's son — Richard Hitchcock — completed a Medicaid application on her behalf. She subsequently began receiving Medicaid benefits, but was required to remit her Net Available Monthly Income (NAMI) — i.e., her monthly social security and, or, pension income — to plaintiff as a contribution toward her care. Upon her death, decedent owed plaintiff a total of $43,126.18. Plaintiff then commenced this action against defendant for breach of contract. Issue has been joined and discovery is underway. Presently before the Court is plaintiff's motion for summary judgment granting the relief requested in the complaint.

On a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

Here, plaintiff contends that defendant is liable as a matter of law for breach of the Agreement. In support of this contention, plaintiff has submitted the affidavit of Cathleen Reusser, its Assistant Administrator, which affidavit attaches a signed copy of the Agreement. Reusser states, in pertinent part, that "[d]efendant represented that she was attorney-in-fact for [decedent] and, as a result, had access to [decedent's] assets and income" to satisfy her obligations as the Responsible Party under the Agreement. Plaintiff has also submitted the affirmation of its counsel who states that the amount due and owing is comprised of "a private balance [and the decedent's] accumulated NAMI contribution" for services rendered from April 12, 2011 to October 31, 2011. An invoice dated June 24, 2014 is attached to the affirmation in an attempt to confirm the accuracy of such statement. Counsel further states that "[d]efendant explicitly admits in her [v]erified [i]nterrogatory responses that she managed [decedent's] checkbook from the period of 2011 through July 2012,' the very period for which there is an outstanding debt."

To the extent that counsel for plaintiff has no personal knowledge of the statement [*3]apparently generated on June 24, 2014, this affirmation is insufficient to demonstrate — as a matter of law that the $43,126.18 due and owing pertains to services rendered from April 12, 2011 to October 31, 2012 (see Hill v Country Club Acres, Inc., 134 AD3d 1267, 1268 [2015]; 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1395 [2009], lv denied 14 NY3d 706 [2010]; Bronson v Algonquin Lodge Assn., 295 AD2d 681, 682 [2002]). This notwithstanding, plaintiff has nonetheless demonstrated its entitlement to judgment as a matter of law, thus shifting the burden to defendant to raise a triable issue of fact. Given the affidavit of Reusser and the admissions contained within defendant's verified interrogatory responses, plaintiff has demonstrated "that defendant accepted personal responsibility to utilize her access to decedent's funds to pay for [her] care and then breached that agreement by failing to apply available assets to pay decedent's nursing home bills" (Troy Nursing & Rehabilitation Ctr., LLC v Naylor, 94 AD3d 1353, 1354-1355 [2012], lv dismissed 19 NY3d 1045 [2012]).

In opposition to the motion, defendant first contends that the terms of the Agreement are ambiguous and contradictory. Specifically, defendant contends that the Agreement repeatedly states she is not obligated to pay for the cost of decedent's care from her own personal funds. The Court is unpersuaded. While the Agreement does state that defendant is not obligated to pay the cost of decedent's care from her own personal funds, it further states that defendant may be personally liable for damages in the event she fails to utilize her access to decedent's funds to pay the Facility. The Agreement also provides that any damages stemming from this failure must be paid from defendant's personal funds. Under the circumstances, [t]he contract's words unmistakenly oblige defendant[] to insure payment" (Daughters of Sarah Nursing Home Co. v Lipkin, 145 AD2d 808, 808 [1988]).

Defendant next contends that Kristin L. Glebus — plaintiff's Admissions Coordinator with whom she reviewed the Agreement — repeatedly advised her that she would be incurring no personal liability by signing the Agreement as Responsible Party. In support of this contention, defendant has submitted Glebus' deposition transcript wherein she states as follows:

"Part of the [A]greement, yes, discusses that the [A]greement names the person that signed as the [R]esponsible [P]arty and we do talk about what that means. That doesn't bind her to pay for the cost of her mom's care out of her own funds, but it does bind her to make sure the funds are managed appropriately to make sure her obligations to our [F]acility are met . . . "

The Court finds that — if anything — Glebus' statement highlights the personal liability undertaken by defendant. Indeed, there is nothing to suggest that Glebus referred to the Agreement as a mere formality, without any explanation of the financial obligations resulting (compare Daughters of Sarah Nursing Home Co. v Frisch, 170 AD2d 752, 752-753 [1991]). Accordingly, this contention is also without merit.

Finally, defendant argues she satisfied her obligations under the Agreement. In this regard, defendant has submitted an affidavit stating that she never held a power of attorney for decedent — nor did she represent to plaintiff that she held a power of attorney. Defendant points to pages 13 and 14 of the Agreement wherein her relationship to decedent — originally listed as "Daughter/POA" — was changed to "Daughter/POA." According to defendant, upon seeing her relationship described as "Daughter/POA," she immediately advised Glebus she was not power of attorney for decedent and the "POA" portion of the description was then struck. Defendant [*4]further states as follows:

"I fully performed each and all of [my] obligations [under the Agreement] to the best of my ability and control. Plaintiff presents no proof to this [C]ourt that [I] failed or refused to the extent I had legal access to [decedent's] assets to provide payments to plaintiff . . . ."

In furtherance of this statement, defendant has submitted an undated letter she sent to plaintiff enclosing a check in the amount of $22,529.98, which was reportedly "the total amount of Social Security received by [decedent] from April 1, 2011 — October 2012, exclusive of $50.00 per month which she . . . retained for personal expenses."

Under these circumstances defendant has succeeded in raising a triable issue of fact in opposition to the motion. The Agreement obligated defendant to make payments from the funds to which she had access and, here, it is unclear whether defendant had access to sufficient funds to pay the amount due and owing. Defendant did not hold power of attorney for decedent and, as such, it is unclear how she managed decedent's checkbook — unless she too was named on the account. It is equally unclear how much money was in the account and how that money was spent (compare Troy Nursing & Rehabilitation Ctr., LLC v Naylor, 94 AD3d at 1355). Finally, if there was not sufficient money in decedent's checking account, it is unclear whether defendant had access to other accounts owned by decedent, to the extent that other accounts existed.

Based upon the foregoing, plaintiff's motion for summary judgment is denied in its entirety.

Counsel are hereby directed to appear for a compliance conference on June 3, 2016 at 10:00 A.M. at the Essex County Courthouse in Elizabethtown, New York.

The original of this Decision and Order has been filed by the Court. The Notice of Motion dated August 19, 2015 has been filed by the Court together with the submissions referenced below. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon plaintiff in accordance with CPLR 5513.