Preview
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
OUR LADY OF PEACE, INC.
Plaintiff, COMPLAINT
vs.
Index No.
ELLEN MALONEY
And
DEBRA CARTER
Defendants.
Plaintiff, OUR LADY OF PEACE, INC., by its attorneys, Magavern Magavern Grimm
LLP, as and for its complaint against defendant DEBRA CARTER alleges as follows:
1. At all times hereinafter mentioned, plaintiff Our Lady of Peace, Inc. (“OLP”) was
and is a not-for-profit corporation organized and existing under the laws of the State of New
York.
2. At all times hereinafter mentioned, OLP conducts business as a nursing home and
rehabilitation facility in the Town of Lewiston, County of Niagara, and State of New York.
3. Upon information and belief, defendant Ellen Maloney was and is a resident of
the County of Niagara, State of New York.
4. Upon information and belief, defendant Debra Carter was and is a resident of the
County of Niagara, State of New York.
5. Upon information and belief, Defendant is the daughter of defendant Ellen
Maloney (“Ms. Maloney”), and is legal agent of Ms. Maloney pursuant to a durable power of
attorney (“POA”).
1 of 7
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024
6. Ms. Maloney was and is a resident at Plaintiff’s skilled nursing facility from May
1, 2023, through the date of this complaint, inclusive.
7. As Ms. Maloney’s Agent and contractually defined Resident Representative,
Defendant executed an Admission Agreement (the “Agreement”) relating to Ms. Maloney’s care
and treatment at the residential health care facilities of Plaintiff. A copy of the Agreement is
attached hereto as Exhibit A, and made a part hereof.
8. The Admission Agreement provides, in Paragraph 6, that the Resident, Ms.
Maloney, and/or Resident Representative, Defendant, agrees to pay the Facility for services
rendered to Ms. Maloney, including the Daily Rate, Physician and Other Services/Supply
Charges and Personal Service/Item Charges.
9. The Agreement further provides that Defendant, as Ms. Maloney’s Agent and the
Resident Representative, would use and manage Ms. Maloney’s income and assets so as to
provide uninterrupted payment of all charges to Plaintiff.
10. Upon information and belief, at all times hereinafter mentioned and at the time
Ms. Maloney was admitted to OLP, Defendant had access to and control of Ms. Maloney’s
finances.
11. The Agreement also required Defendant to make application for Medicaid
benefits in the event that Ms. Maloney did not have funds sufficient to pay for her care.
12. Upon information and belief, Ms. Maloney did receive Medicaid benefits.
13. Upon information and belief, Medicaid determined that Ms. Maloney was
required to pay over her qualified monthly income, to OLP.
14. Upon information and belief, Defendant was and is in control and possession of
Ms. Maloney’s monthly income.
2
2 of 7
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024
15. At the specific request of Defendant, Plaintiff provided Ms. Maloney with skilled
nursing, medical and rehabilitative care, which Defendant promised to pay for using the assets of
Ms. Maloney.
16. Defendant was contractually obligated to use Ms. Maloney’s income and assets to
pay for her care at OLP.
17. Defendant failed to use Ms. Maloney’s income and assets to pay for her care at
OLP.
18. Upon information and belief, Defendant transferred income and assets belonging
to Ms. Maloney to herself for her personal use.
19. Defendant admitted to OLP that she used Ms. Maloney’s income and assets for
her own personal use.
20. As a result of Defendant’s failure to use Ms. Maloney’s funds to pay for her care
at OLP and conversion of her income and assets, Ms. Maloney incurred total charges for her care
at OLP in the amount of $35,407.45. A copy of Ms. Maloney’s account statement is attached
hereto as Exhibit B, and made a part hereof.
21. No part of said sum has been paid, although payment has been demanded and
$35,407.45 is now due and owing.
22. The Agreement provides for the recovery of attorney’s fees and collection costs in
the event that such expenses are incurred in connection with enforcing the Agreement.
23. Plaintiff has incurred collection costs, attorneys’ fees and damages as a result of
Defendant’s breach of her obligations pursuant to the Agreement.
3
3 of 7
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024
AS AND FOR A
FIRST CAUSE OF ACTION
AGAINST BOTH DEFENDANTS
(Breach of Contract)
24. Plaintiff repeats and realleges paragraph 1 through 23, as if fully set forth herein.
25. Upon information and belief, Defendant entered into the Agreement on behalf of
Ms. Maloney as her Agent, and as her Resident Representative.
26. Pursuant to the Agreement, Defendant was obligated to use Ms. Maloney’s
income and assets to pay Ms. Maloney’s lawful debt to Plaintiff.
27. Upon information and belief, Defendant was custodian of the assets of Ms.
Maloney.
28. Upon information and belief, Defendant had access to bank accounts that were
continuously replenished by the deposit of Ms. Maloney’s income and assets.
29. As a result of Ms. Maloney’s acceptance of services from Plaintiff pursuant to the
Agreement and Defendant’s subsequent failure to pay Plaintiff from the assets and income of
Ms. Maloney, Plaintiff has been damaged in the amount of $35,407.45, plus statutory interest
thereon from May 1, 2023, together with all collection costs and attorney’s fees.
AS AND FOR A
SECOND CAUSE OF ACTION
AGAINST BOTH DEFENDANTS
(DCL Sec. 273)
30. Plaintiff repeats and realleges paragraphs 1 through 23 as if fully set forth herein.
31. Upon information and belief, the transfers of Ms. Maloney’s income and assets to
Defendant were made without consideration.
4
4 of 7
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024
32. Upon information and belief, the transfer of Ms. Maloney’s income and assets to
Defendant rendered Ms. Maloney insolvent.
33. Upon information and belief, the transfer of Ms. Maloney’s income and assets to
Defendant came at a time when Ms. Maloney was engaged in or was about to engage in a
business transaction with Plaintiff, for which her remaining property constituted unreasonably
small capital to satisfy the resulting debt.
34. Upon information and belief, the transfer Ms. Maloney’s income and assets to
Defendant occurred at a time when Ms. Maloney and Defendant believed that Ms. Maloney was
about to incur debt beyond her ability to pay should the transaction occur.
35. The transfer of Ms. Maloney’s income and assets to Defendant were fraudulent
transfers within the meaning of DCL §273.
36. As a result of the transfer of Ms. Maloney’s income and assets to Defendant,
Plaintiff was damaged in the amount of $35,407.45, plus statutory interest thereon from May 1,
2023, attorney’s fees and the costs of this action.
AS AND FOR AN
THIRD CAUSE OF ACTION
AGAINST BOTH DEFENDANTS
(DCL Sec. 275)
37. Plaintiff repeats and realleges paragraphs 1 through 23 as if fully set forth herein.
38. Upon information and belief, the transfer of Ms. Maloney’s income and assets to
Defendant was made without consideration.
39. Upon information and belief, the transfer of Ms. Maloney’s income and assets to
Defendant rendered Ms. Maloney insolvent.
40. Upon information and belief, the transfer of Ms. Maloney’s income and assets to
Defendant left Ms. Maloney with unreasonably small capital.
5
5 of 7
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024
41. Upon information and belief, at the time the transfer of Ms. Maloney’s income
and assets to Defendant, Defendant intended to incur or believed that Ms. Maloney would incur
debts to Plaintiff beyond her ability to pay when the debts matured.
42. The transfer of Ms. Maloney’s income and assets to Defendant were fraudulent
transfers within the meaning of DCL §275.
43. As a result of Ms. Maloney’s fraudulent transfers to Defendant, Plaintiff was
damaged in the amount of $35,407.45, plus statutory interest thereon from May 1, 2023,
attorney’s fees and the costs of this action.
AS AND FOR A
FOURTH CAUSE OF ACTION
AGAINST BOTH DEFENDANTS
(DCL Secs. 276; 276-A)
44. Plaintiff repeats and realleges paragraphs 1 through 23 as if fully set forth herein.
45. Upon information and belief, the transfer of Ms. Maloney’s income and assets to
Defendant was made without consideration.
46. Upon information and belief, the transfer of Ms. Maloney’s income and assets to
Defendant rendered Ms. Maloney insolvent.
47. Upon information and belief, the source from which Defendant transferred the
income and assets of Ms. Maloney to themselves had value from which Plaintiff could have
realized a portion of, or its entire, claim.
48. Upon information and belief, the income and assets were transferred to Defendant
with actual intent to defraud creditors, including Plaintiff.
49. The transfer of Ms. Maloney’s income and assets to Defendant were fraudulent
transfers within the meaning of DCL §276.
6
6 of 7
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024
50. DCL §276-a provides for the recovery of attorney’s fees incurred in connection
with a claim made pursuant to DCL §276. Plaintiff has incurred such attorney’s fees
51. As a result of Defendant’s fraudulent transfer of Ms. Maloney’s funds to
Defendant, Plaintiff was damaged in the amount of $35,407.45, plus statutory interest thereon
from May 1, 2023, attorney’s fees and the costs of this action.
WHEREFORE, Plaintiff demands judgment over and against Defendants as follows:
a. on its first cause of action, the sum of $35,407.45, together with statutory interest
from May 1, 2023, attorney’s fees and the costs and disbursements of this action;
b. on its second cause of action, the sum of $35,407.45, plus statutory interest
thereon from May 1, 2023, attorney’s fees and the costs of this action;
c. on its third cause of action, the sum of $35,407.45, plus statutory interest thereon
from May 1, 2023, attorney’s fees and the costs of this action; and
d. on its fourth cause of action, the sum of $35,407.45, plus statutory interest thereon
from May 1, 2023, attorney’s fees and the costs of this action.
Dated: Niagara Falls, New York
February 27, 2024
MAGAVERN MAGAVERN GRIMM LLP
By
Sean J. MacKenzie, Esq.
Attorneys for Plaintiff
Office and Post Office Address
810 Main Street
Niagara Falls, New York 14301
Tel. No.: 716.285.1550
E-mail: smackenzie@magavern.com
\16190.0170\1156725.doc
7
7 of 7
Preview
FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA OUR LADY OF PEACE, INC. Plaintiff, COMPLAINT vs. Index No. ELLEN MALONEY And DEBRA CARTER Defendants. Plaintiff, OUR LADY OF PEACE, INC., by its attorneys, Magavern Magavern Grimm LLP, as and for its complaint against defendant DEBRA CARTER alleges as follows: 1. At all times hereinafter mentioned, plaintiff Our Lady of Peace, Inc. (“OLP”) was and is a not-for-profit corporation organized and existing under the laws of the State of New York. 2. At all times hereinafter mentioned, OLP conducts business as a nursing home and rehabilitation facility in the Town of Lewiston, County of Niagara, and State of New York. 3. Upon information and belief, defendant Ellen Maloney was and is a resident of the County of Niagara, State of New York. 4. Upon information and belief, defendant Debra Carter was and is a resident of the County of Niagara, State of New York. 5. Upon information and belief, Defendant is the daughter of defendant Ellen Maloney (“Ms. Maloney”), and is legal agent of Ms. Maloney pursuant to a durable power of attorney (“POA”). 1 of 7 FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024 6. Ms. Maloney was and is a resident at Plaintiff’s skilled nursing facility from May 1, 2023, through the date of this complaint, inclusive. 7. As Ms. Maloney’s Agent and contractually defined Resident Representative, Defendant executed an Admission Agreement (the “Agreement”) relating to Ms. Maloney’s care and treatment at the residential health care facilities of Plaintiff. A copy of the Agreement is attached hereto as Exhibit A, and made a part hereof. 8. The Admission Agreement provides, in Paragraph 6, that the Resident, Ms. Maloney, and/or Resident Representative, Defendant, agrees to pay the Facility for services rendered to Ms. Maloney, including the Daily Rate, Physician and Other Services/Supply Charges and Personal Service/Item Charges. 9. The Agreement further provides that Defendant, as Ms. Maloney’s Agent and the Resident Representative, would use and manage Ms. Maloney’s income and assets so as to provide uninterrupted payment of all charges to Plaintiff. 10. Upon information and belief, at all times hereinafter mentioned and at the time Ms. Maloney was admitted to OLP, Defendant had access to and control of Ms. Maloney’s finances. 11. The Agreement also required Defendant to make application for Medicaid benefits in the event that Ms. Maloney did not have funds sufficient to pay for her care. 12. Upon information and belief, Ms. Maloney did receive Medicaid benefits. 13. Upon information and belief, Medicaid determined that Ms. Maloney was required to pay over her qualified monthly income, to OLP. 14. Upon information and belief, Defendant was and is in control and possession of Ms. Maloney’s monthly income. 2 2 of 7 FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024 15. At the specific request of Defendant, Plaintiff provided Ms. Maloney with skilled nursing, medical and rehabilitative care, which Defendant promised to pay for using the assets of Ms. Maloney. 16. Defendant was contractually obligated to use Ms. Maloney’s income and assets to pay for her care at OLP. 17. Defendant failed to use Ms. Maloney’s income and assets to pay for her care at OLP. 18. Upon information and belief, Defendant transferred income and assets belonging to Ms. Maloney to herself for her personal use. 19. Defendant admitted to OLP that she used Ms. Maloney’s income and assets for her own personal use. 20. As a result of Defendant’s failure to use Ms. Maloney’s funds to pay for her care at OLP and conversion of her income and assets, Ms. Maloney incurred total charges for her care at OLP in the amount of $35,407.45. A copy of Ms. Maloney’s account statement is attached hereto as Exhibit B, and made a part hereof. 21. No part of said sum has been paid, although payment has been demanded and $35,407.45 is now due and owing. 22. The Agreement provides for the recovery of attorney’s fees and collection costs in the event that such expenses are incurred in connection with enforcing the Agreement. 23. Plaintiff has incurred collection costs, attorneys’ fees and damages as a result of Defendant’s breach of her obligations pursuant to the Agreement. 3 3 of 7 FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024 AS AND FOR A FIRST CAUSE OF ACTION AGAINST BOTH DEFENDANTS (Breach of Contract) 24. Plaintiff repeats and realleges paragraph 1 through 23, as if fully set forth herein. 25. Upon information and belief, Defendant entered into the Agreement on behalf of Ms. Maloney as her Agent, and as her Resident Representative. 26. Pursuant to the Agreement, Defendant was obligated to use Ms. Maloney’s income and assets to pay Ms. Maloney’s lawful debt to Plaintiff. 27. Upon information and belief, Defendant was custodian of the assets of Ms. Maloney. 28. Upon information and belief, Defendant had access to bank accounts that were continuously replenished by the deposit of Ms. Maloney’s income and assets. 29. As a result of Ms. Maloney’s acceptance of services from Plaintiff pursuant to the Agreement and Defendant’s subsequent failure to pay Plaintiff from the assets and income of Ms. Maloney, Plaintiff has been damaged in the amount of $35,407.45, plus statutory interest thereon from May 1, 2023, together with all collection costs and attorney’s fees. AS AND FOR A SECOND CAUSE OF ACTION AGAINST BOTH DEFENDANTS (DCL Sec. 273) 30. Plaintiff repeats and realleges paragraphs 1 through 23 as if fully set forth herein. 31. Upon information and belief, the transfers of Ms. Maloney’s income and assets to Defendant were made without consideration. 4 4 of 7 FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024 32. Upon information and belief, the transfer of Ms. Maloney’s income and assets to Defendant rendered Ms. Maloney insolvent. 33. Upon information and belief, the transfer of Ms. Maloney’s income and assets to Defendant came at a time when Ms. Maloney was engaged in or was about to engage in a business transaction with Plaintiff, for which her remaining property constituted unreasonably small capital to satisfy the resulting debt. 34. Upon information and belief, the transfer Ms. Maloney’s income and assets to Defendant occurred at a time when Ms. Maloney and Defendant believed that Ms. Maloney was about to incur debt beyond her ability to pay should the transaction occur. 35. The transfer of Ms. Maloney’s income and assets to Defendant were fraudulent transfers within the meaning of DCL §273. 36. As a result of the transfer of Ms. Maloney’s income and assets to Defendant, Plaintiff was damaged in the amount of $35,407.45, plus statutory interest thereon from May 1, 2023, attorney’s fees and the costs of this action. AS AND FOR AN THIRD CAUSE OF ACTION AGAINST BOTH DEFENDANTS (DCL Sec. 275) 37. Plaintiff repeats and realleges paragraphs 1 through 23 as if fully set forth herein. 38. Upon information and belief, the transfer of Ms. Maloney’s income and assets to Defendant was made without consideration. 39. Upon information and belief, the transfer of Ms. Maloney’s income and assets to Defendant rendered Ms. Maloney insolvent. 40. Upon information and belief, the transfer of Ms. Maloney’s income and assets to Defendant left Ms. Maloney with unreasonably small capital. 5 5 of 7 FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024 41. Upon information and belief, at the time the transfer of Ms. Maloney’s income and assets to Defendant, Defendant intended to incur or believed that Ms. Maloney would incur debts to Plaintiff beyond her ability to pay when the debts matured. 42. The transfer of Ms. Maloney’s income and assets to Defendant were fraudulent transfers within the meaning of DCL §275. 43. As a result of Ms. Maloney’s fraudulent transfers to Defendant, Plaintiff was damaged in the amount of $35,407.45, plus statutory interest thereon from May 1, 2023, attorney’s fees and the costs of this action. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST BOTH DEFENDANTS (DCL Secs. 276; 276-A) 44. Plaintiff repeats and realleges paragraphs 1 through 23 as if fully set forth herein. 45. Upon information and belief, the transfer of Ms. Maloney’s income and assets to Defendant was made without consideration. 46. Upon information and belief, the transfer of Ms. Maloney’s income and assets to Defendant rendered Ms. Maloney insolvent. 47. Upon information and belief, the source from which Defendant transferred the income and assets of Ms. Maloney to themselves had value from which Plaintiff could have realized a portion of, or its entire, claim. 48. Upon information and belief, the income and assets were transferred to Defendant with actual intent to defraud creditors, including Plaintiff. 49. The transfer of Ms. Maloney’s income and assets to Defendant were fraudulent transfers within the meaning of DCL §276. 6 6 of 7 FILED: NIAGARA COUNTY CLERK 02/27/2024 02:12 PM INDEX NO. E182688/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/27/2024 50. DCL §276-a provides for the recovery of attorney’s fees incurred in connection with a claim made pursuant to DCL §276. Plaintiff has incurred such attorney’s fees 51. As a result of Defendant’s fraudulent transfer of Ms. Maloney’s funds to Defendant, Plaintiff was damaged in the amount of $35,407.45, plus statutory interest thereon from May 1, 2023, attorney’s fees and the costs of this action. WHEREFORE, Plaintiff demands judgment over and against Defendants as follows: a. on its first cause of action, the sum of $35,407.45, together with statutory interest from May 1, 2023, attorney’s fees and the costs and disbursements of this action; b. on its second cause of action, the sum of $35,407.45, plus statutory interest thereon from May 1, 2023, attorney’s fees and the costs of this action; c. on its third cause of action, the sum of $35,407.45, plus statutory interest thereon from May 1, 2023, attorney’s fees and the costs of this action; and d. on its fourth cause of action, the sum of $35,407.45, plus statutory interest thereon from May 1, 2023, attorney’s fees and the costs of this action. Dated: Niagara Falls, New York February 27, 2024 MAGAVERN MAGAVERN GRIMM LLP By Sean J. MacKenzie, Esq. Attorneys for Plaintiff Office and Post Office Address 810 Main Street Niagara Falls, New York 14301 Tel. No.: 716.285.1550 E-mail: smackenzie@magavern.com \16190.0170\1156725.doc 7 7 of 7