Preview
FILED: NEW YORK COUNTY CLERK 03/24/2015 11:30 PM INDEX NO. 161001/2014
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/24/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JEWISH HOME LIFECARE
Plaintiff,
-against-
Reply Affirmation
MARK AST, ERNEST AST and
FIDUCIARY for THE ESTATE OF BETTY AST
Defendants. Index No. 161001/2014
----------------------------------------------------------------------x
Alberthe Bernier, Esq., an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following to be true under the penalty of
perjury:
1. I am an attorney associated with the law firm of Littman Krooks LLP,
counsel for the Plaintiff, JEWISH HOME LIFECARE (“JHL” or “Facility”). I have been
involved with this matter since December 2012 and as such I am fully familiar with the
facts and circumstances surrounding the underlying case issues from review of Plaintiff
JHL’s file, conversations with Plaintiff's personnel, and actions taken by Littman Krooks
LLP, on behalf of Plaintiff, in connection with the underlying claims.
2. I submit this affirmation in reply to the affirmation in opposition served by
the Defendants and in further support of Plaintiff’s motion dated March 3, 2015 for an
Order: (1) pursuant to CPLR 1001(a) adding MARK AST and ERNEST AST, as
Trustees of the BETTY AST 2004 REVOCABLE TRUST, as necessary Defendants to
the foregoing action and amending the caption of the action to reflect same; (2)
pursuant to CPLR 3025(b) granting Plaintiff leave to file an Amended Verified Complaint
to: (i) add the Trustees of the BETTY AST 2004 REVOCABLE TRUST as party
defendants (ii) re-plead and add new allegations of fact in support of Plaintiffs’ causes of
action for fraudulent conveyance and constructive fraud; and (iii) to amend and
supplement Plaintiff’s Answer dated January 15, 2015 submitted in opposition to
Defendant’s motion for dismissal and summary Judgment dated January 6, 2015; (3)
pursuant to CPLR 306-b to extend the time to serve the Fiduciary for the Estate of Betty
Ast; (4) deeming the annexed proposed Amended Verified Complaint as timely and
validly served on the Trustees of the BETTY AST 2004 REVOCABLE TRUST; and (5)
granting such other and further relief as the Court may deem just and proper.
3. In their opposition, Defendants continue to reply on inapplicable case law
and irrelevant facts in support of their erroneous position that Plaintiff’s fail to state a
cause of action. Defendants would lead the Court to believe that their premature motion
to dismiss is justifiable and as such Plaintiff should be barred from moving to amend
their underlying pleadings. Defendants in their responsive papers resort to diversion
tactics of criticizing Plaintiff’s current motion to amend as “absurd” to draw attention
away from the simple fact that the recent discovery of the Betty Ast 2004 Revocable
Trust supports Plaintiff’s allegations that Defendants in fact engaged in fraudulent
conveyances of their mothers property, most recently as two years prior to her entering
Plaintiff’s nursing facility, and thus the addition of the Trust as an interested party is
warranted.
4. We reiterate, contrary to Defendants’ contention, Plaintiff’s contract does
not, and neither does federal or state law, bar Plaintiff from holding Defendants
personally liable for their: (1) failure to facilitate payment to Plaintiff’s nursing facility
from their mother’s income and assets based on their access to said income and
assets; and (2) fraudulent conveyances of such assets. 42 USC §
1396r(c)(5)(B)(ii); See also, 10 NYCRR 415.3(b)(6). It is undisputable that the
Defendants had and continue to have access to their mother’s income and assets by
virtue of the Power of Attorney signed in their favor and as the fiduciary for their
mother’s revocable trust. “A power of attorney … would, at least prima facie, constitute
"legal access to a resident's income or resources" within the meaning of the governing
statute (see 42 USC §1396r[c][5][B][ii]) and "control over the Resident's assets" within
the meaning of the Admission Agreement. See Prospect Park Nursing Home, Inc. v.
Goutier, 2006 NY Slip Op 51536(U) [12 Misc 3d 1192(A)] (N.Y. Civil Court Kings County
August 7, 2006). "An attorney in fact is essentially an alter ego of the
principal...Sections 5-1502 A through 5-1502 L of the General Obligations Law describe
and explain the extraordinary scope of the authority of an attorney in fact with respect to
the principal's various matters." Id.
5. Defendants offer no explanation for the 2010 transfer and/or sale of their
mother’s home held in her revocable trust, which Trust directs Defendants as Trustees
to use the Trust assets to pay for the debts of Betty Ast and moreover, which trust is an
asset fully includable in the Estate of Betty Ast and is chargeable against the Estate’s
debts. It is the Defendants’ 2010 transfer and/or sale of the Betty Ast real estate that
Plaintiff alleges to form the basis of its fraudulent conveyance claim in conjunction with
the initial transfer of such real estate to the Betty Ast 2004 Trust. The fact that the
Defendants did not sign Plaintiff’s Admission Agreement Contract in their capacity as
Trustee of the Betty Ast 2004 Revocable Trust is irrelevant and does not obviate their
responsibility to use such assets to answer for the debts of the Estate of Betty Ast
pursuant to the Trust’s specific terms. Therefore, Plaintiff’s motion to amend the
underlying pleadings to add the Trust as an interested party should be granted so as to
achieve a just determination of Plaintiff’s claims.
6. Defendants’ argument that Plaintiff’s motion to amend is prejudicial as
their motion to dismiss was fully briefed is unavailing. Pursuant to the express terms of
CPLR 3025(b) a party is permitted to serve an amended or supplemental pleading "at
any time by leave of court," and further states that "leave shall be freely given." Further,
in Dittmar Explosives, Inc. v. A. E. Ottaviano, Inc., 20 N.Y.2d 498, 231 N.E.2d 756, 285
N.Y.S.2d 55, (N.Y. 1967), the Court of Appeals held that, “ifno prejudice is found, the
pleadings may be amended during or even after trial.” The Court of Appeals also held
that an “amendment of a complaint, even after a motion to dismiss, involving no
substantial change in theory of recovery, was proper, but amendment radically changing
such theory was improper. See, Berkenstat v. Oliver, (1949) 275 App Div 679, 86
NYS2d 682. With the case at bar, we re-submit, that no surprise is occasioned to
Defendants as no new claims or theories of liability are being asserted by Plaintiff,
rather, Plaintiff is merely providing the Court with new and relevant facts pertaining to
the Betty Ast 2004 Revocable Trust and the transfers therein, to thoroughly establish its
claims that the Defendants breached its contract with Plaintiff, misled Plaintiff to believe
that payment would be forthcoming, and further engaged in fraudulent conveyances of
their mother’s assets to the detriment of Plaintiff.
7. It is noted that in their opposition papers, Defendants offer no argument
against Plaintiff’s motion to: (1) amend and supplement Plaintiff’s Answer dated January
15, 2015; and (2) extend the time to serve the Fiduciary of the Estate of Betty Ast, if the
Court deems said Defendant is a necessary party to the underlying action. Accordingly,
it is respectfully submitted, that Defendants do not oppose that portion of Plaintiff’s
application.
WHEREFORE, Plaintiff respectfully requests that this Court issue an Order
granting Plaintiff’s March 3, 2015 motion to amend in its entirety.
Respectfully submitted,
Dated: White Plains, New York LITTMAN KROOKS LLP
March 24, 2015
By: /s/ Alberthe Bernier
ALBERTHE BERNIER, ESQ.
Attorneys for the Plaintiff
Pursuant to 22 NYCRR 130-1.1
399 Knollwood Road
White Plains, New York 10603
(914) 684-2100
Preview
FILED: NEW YORK COUNTY CLERK 03/24/2015 11:30 PM INDEX NO. 161001/2014 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/24/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------x JEWISH HOME LIFECARE Plaintiff, -against- Reply Affirmation MARK AST, ERNEST AST and FIDUCIARY for THE ESTATE OF BETTY AST Defendants. Index No. 161001/2014 ----------------------------------------------------------------------x Alberthe Bernier, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalty of perjury: 1. I am an attorney associated with the law firm of Littman Krooks LLP, counsel for the Plaintiff, JEWISH HOME LIFECARE (“JHL” or “Facility”). I have been involved with this matter since December 2012 and as such I am fully familiar with the facts and circumstances surrounding the underlying case issues from review of Plaintiff JHL’s file, conversations with Plaintiff's personnel, and actions taken by Littman Krooks LLP, on behalf of Plaintiff, in connection with the underlying claims. 2. I submit this affirmation in reply to the affirmation in opposition served by the Defendants and in further support of Plaintiff’s motion dated March 3, 2015 for an Order: (1) pursuant to CPLR 1001(a) adding MARK AST and ERNEST AST, as Trustees of the BETTY AST 2004 REVOCABLE TRUST, as necessary Defendants to the foregoing action and amending the caption of the action to reflect same; (2) pursuant to CPLR 3025(b) granting Plaintiff leave to file an Amended Verified Complaint to: (i) add the Trustees of the BETTY AST 2004 REVOCABLE TRUST as party defendants (ii) re-plead and add new allegations of fact in support of Plaintiffs’ causes of action for fraudulent conveyance and constructive fraud; and (iii) to amend and supplement Plaintiff’s Answer dated January 15, 2015 submitted in opposition to Defendant’s motion for dismissal and summary Judgment dated January 6, 2015; (3) pursuant to CPLR 306-b to extend the time to serve the Fiduciary for the Estate of Betty Ast; (4) deeming the annexed proposed Amended Verified Complaint as timely and validly served on the Trustees of the BETTY AST 2004 REVOCABLE TRUST; and (5) granting such other and further relief as the Court may deem just and proper. 3. In their opposition, Defendants continue to reply on inapplicable case law and irrelevant facts in support of their erroneous position that Plaintiff’s fail to state a cause of action. Defendants would lead the Court to believe that their premature motion to dismiss is justifiable and as such Plaintiff should be barred from moving to amend their underlying pleadings. Defendants in their responsive papers resort to diversion tactics of criticizing Plaintiff’s current motion to amend as “absurd” to draw attention away from the simple fact that the recent discovery of the Betty Ast 2004 Revocable Trust supports Plaintiff’s allegations that Defendants in fact engaged in fraudulent conveyances of their mothers property, most recently as two years prior to her entering Plaintiff’s nursing facility, and thus the addition of the Trust as an interested party is warranted. 4. We reiterate, contrary to Defendants’ contention, Plaintiff’s contract does not, and neither does federal or state law, bar Plaintiff from holding Defendants personally liable for their: (1) failure to facilitate payment to Plaintiff’s nursing facility from their mother’s income and assets based on their access to said income and assets; and (2) fraudulent conveyances of such assets. 42 USC § 1396r(c)(5)(B)(ii); See also, 10 NYCRR 415.3(b)(6). It is undisputable that the Defendants had and continue to have access to their mother’s income and assets by virtue of the Power of Attorney signed in their favor and as the fiduciary for their mother’s revocable trust. “A power of attorney … would, at least prima facie, constitute "legal access to a resident's income or resources" within the meaning of the governing statute (see 42 USC §1396r[c][5][B][ii]) and "control over the Resident's assets" within the meaning of the Admission Agreement. See Prospect Park Nursing Home, Inc. v. Goutier, 2006 NY Slip Op 51536(U) [12 Misc 3d 1192(A)] (N.Y. Civil Court Kings County August 7, 2006). "An attorney in fact is essentially an alter ego of the principal...Sections 5-1502 A through 5-1502 L of the General Obligations Law describe and explain the extraordinary scope of the authority of an attorney in fact with respect to the principal's various matters." Id. 5. Defendants offer no explanation for the 2010 transfer and/or sale of their mother’s home held in her revocable trust, which Trust directs Defendants as Trustees to use the Trust assets to pay for the debts of Betty Ast and moreover, which trust is an asset fully includable in the Estate of Betty Ast and is chargeable against the Estate’s debts. It is the Defendants’ 2010 transfer and/or sale of the Betty Ast real estate that Plaintiff alleges to form the basis of its fraudulent conveyance claim in conjunction with the initial transfer of such real estate to the Betty Ast 2004 Trust. The fact that the Defendants did not sign Plaintiff’s Admission Agreement Contract in their capacity as Trustee of the Betty Ast 2004 Revocable Trust is irrelevant and does not obviate their responsibility to use such assets to answer for the debts of the Estate of Betty Ast pursuant to the Trust’s specific terms. Therefore, Plaintiff’s motion to amend the underlying pleadings to add the Trust as an interested party should be granted so as to achieve a just determination of Plaintiff’s claims. 6. Defendants’ argument that Plaintiff’s motion to amend is prejudicial as their motion to dismiss was fully briefed is unavailing. Pursuant to the express terms of CPLR 3025(b) a party is permitted to serve an amended or supplemental pleading "at any time by leave of court," and further states that "leave shall be freely given." Further, in Dittmar Explosives, Inc. v. A. E. Ottaviano, Inc., 20 N.Y.2d 498, 231 N.E.2d 756, 285 N.Y.S.2d 55, (N.Y. 1967), the Court of Appeals held that, “ifno prejudice is found, the pleadings may be amended during or even after trial.” The Court of Appeals also held that an “amendment of a complaint, even after a motion to dismiss, involving no substantial change in theory of recovery, was proper, but amendment radically changing such theory was improper. See, Berkenstat v. Oliver, (1949) 275 App Div 679, 86 NYS2d 682. With the case at bar, we re-submit, that no surprise is occasioned to Defendants as no new claims or theories of liability are being asserted by Plaintiff, rather, Plaintiff is merely providing the Court with new and relevant facts pertaining to the Betty Ast 2004 Revocable Trust and the transfers therein, to thoroughly establish its claims that the Defendants breached its contract with Plaintiff, misled Plaintiff to believe that payment would be forthcoming, and further engaged in fraudulent conveyances of their mother’s assets to the detriment of Plaintiff. 7. It is noted that in their opposition papers, Defendants offer no argument against Plaintiff’s motion to: (1) amend and supplement Plaintiff’s Answer dated January 15, 2015; and (2) extend the time to serve the Fiduciary of the Estate of Betty Ast, if the Court deems said Defendant is a necessary party to the underlying action. Accordingly, it is respectfully submitted, that Defendants do not oppose that portion of Plaintiff’s application. WHEREFORE, Plaintiff respectfully requests that this Court issue an Order granting Plaintiff’s March 3, 2015 motion to amend in its entirety. Respectfully submitted, Dated: White Plains, New York LITTMAN KROOKS LLP March 24, 2015 By: /s/ Alberthe Bernier ALBERTHE BERNIER, ESQ. Attorneys for the Plaintiff Pursuant to 22 NYCRR 130-1.1 399 Knollwood Road White Plains, New York 10603 (914) 684-2100