[*1]
Heubscher Consulting Corp. v Westgate Nursing Home, Inc.
2017 NY Slip Op 52001(U) [59 Misc 3d 1232(A)]
Decided on March 22, 2017
Supreme Court, Monroe County
Taylor, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 22, 2017
Supreme Court, Monroe County


Heubscher Consulting Corp., ERIC HEUBSCHER, Plaintiffs,

against

Westgate Nursing Home, Inc., Defendant.




15-2622



Appearances:



Raymond C. Stilwell, Esq. for Plaintiffs



David H. Ealy, Esq. for Defendant


William K. Taylor, J.

Before the Court is Plaintiffs' motion for summary judgment pursuant to CPLR § 3212. Defendant opposes the motion and cross-moves to dismiss the complaint for failure to state a cause of action, presumably pursuant to CPLR § 3211(a)(7). For the reasons discussed herein, the Court GRANTS Defendant's cross-motion.

On a motion made pursuant to CPLR § 3211(a)(7) this Court's "role is...to 'determine only whether the facts as alleged fit within any cognizable legal theory...and the criterion is whether the proponent of the pleading has a cause of action, not whether he...has stated one.'" Miller v Allstate Indem. Co., 132 AD3d 1306 (4th Dept 2015)(quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Under this analysis, the Court accepts as true each and every factual allegation in the pleading. See e.g., Silsdorf v Levine, 59 NY2d 8, 12 (1983).

Even under this liberal standard, Plaintiffs' complaint fails to state any legally cognizable claim. While the Bankruptcy Court in denying Plaintiffs' fee request on jurisdictional grounds invited them to pursue remedies in state court, such an invitation was not a panacea relieving them from basic pleading requirements to state a cause of action.[FN1] See In [*2]re Westgate Nursing Homes, Inc., 518 BR 250, 258 (WDNY 2014). Indeed, on a previous motion in this case the Court alerted Plaintiffs to its concerns regarding the sufficiency of the complaint. No attempt was made to amend the pleadings. Instead, Plaintiffs merely moved again for summary judgment, attaching the very same pleadings with the very same fundamental infirmity. However liberally pleadings must be construed, it should not be this Court's role to develop causes of action for Plaintiffs — represented here by experienced counsel — and thereby chart the course of this litigation for them.

Accordingly, for the reasons stated herein, Defendant's cross-motion to dismiss the complaint for failure to state a cause of action under CPLR § 3211(a)(7) is hereby GRANTED and the complaint is therefore DISMISSED in its entirety. Based on this ruling, Plaintiffs' motion for summary judgment pursuant to CPLR § 3212 is academic. Any relief requested by the parties but not specifically addressed herein is DENIED.

This constitutes the Decision and Order of the Court.



__________________________



Honorable William K. Taylor



Supreme Court Justice



Dated: March 22, 2017

Footnotes


Footnote 1:The Bankruptcy Court cited to a footnote from In re Sweports, Ltd., 511 BR 522, 526 n3 (ND Ill 2014) for the proposition that the court was not passing upon the issue of whether an estate professional has "rights under non-bankruptcy law to be paid from some other source..." However, the Seventh Circuit ultimately reversed that decision. See In re Sweports, Ltd., 777 F3d 364 (7th Cir 2015). Writing for the Circuit Court, Judge Posner reasoned that an order dismissing a bankruptcy does not dismiss a court's ancillary jurisdiction to resolve loose ends, such as fee applications. To be sure, Judge Posner recognized that the bankruptcy court could provide meaningful relief to a professional seeking a fee award by issuing an order that the professional could take into state court as a basis for obtaining damages...There would be nothing novel about such an order. Almost every damages suit that is resolved in favor of the plaintiff ends not with a disbursement of money but with a judgment that establishes a debt. If the defendant fails to pay, the plaintiff must initiate a further proceeding to collect the judgment debt. The judgment to which [the professional] was and is entitled would merely establish a debt; to collect it he will undoubtedly have to initiate a collection suit in state court." Id. at 367. On remand, the Bankruptcy Court then described some of the state court proceedings seeking to enforce the fee award and observed that "[e]nforcement of [the fee] award...has generated extensive, multi-party litigation in the state court that has continued for more than a year and a half. Enforcement [has] been no 'minor loose end.'" See In re Sweports, Ltd., __ BR __ (ND Ill, decided February 28, 2017), 2017 WL 773536 *6. Here, however, mere possession of such an order (in the amount of $14,870.00) and the attempt to obtain one (in the amount of $29,414.70) does not relieve a plaintiff of basic pleading requirements under the CPLR.