SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1362 

CA 15-00891 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ. 

 

PRESBYTERIAN HOME FOR CENTRAL NY, INC., 

PLAINTIFF-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

MICHELLE GOREA THOMPSON, FORMERLY KNOWN AS 

MICHELLE GOREA FAGA, 

DEFENDANT-APPELLANT-RESPONDENT, 

ET AL., DEFENDANTS.

 

RALPH W. FUSCO, UTICA, FOR DEFENDANT-APPELLANT-RESPONDENT. 

FELT EVANS, LLP, CLINTON (JAY G. WILLIAMS, III, OF COUNSEL), FOR

PLAINTIFF-RESPONDENT-APPELLANT. 

 

Appeal and cross appeal from an order of the Supreme Court,

Oneida County (Patrick F. MacRae, J.), entered February 13, 2015. The

order, inter alia, granted the motion of plaintiff to compel

disclosure, denied the cross motion of defendant Michelle Gorea

Thompson, formerly known as Michelle Gorea Faga, for summary judgment,

and denied the motion of plaintiff for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover a balance

of $69,713.59 allegedly due for room, board, and nursing services it

provided to Vivian Gorea, the now-deceased mother of defendantappellant-respondent (defendant), between August 1, 2010, and Gorea’s

death on April 9, 2011. When Gorea was admitted to plaintiff’s

facility in November 2008, defendant signed, among other things, a

“private pay agreement” naming her as Gorea’s “responsible party” and

obligating her to: (1) pay for Gorea’s care from Gorea’s resources;

(2) not transfer Gorea’s assets in a manner that would result in

Gorea’s ineligibility for Medicaid coverage; and (3) pay for Gorea’s

care if Medicaid coverage were denied “solely as a result of

[defendant’s] actions.” It is undisputed that, at the time Gorea was

admitted to plaintiff’s facility, there was approximately $54,000 in a

revocable trust owned by Gorea and that defendant was cotrustee of

that trust. It is also undisputed that Gorea was found to be

ineligible for Medicaid until October 2012 because of over $305,000 in

“uncompensated” transfers from her accounts, including from the

revocable trust, between July 2006 and January 2009. 
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CA 15-00891 

After commencing this action, plaintiff moved to compel

disclosure from defendant of, inter alia, records relating to the

transfers made from the revocable trust. Defendant cross-moved for

summary judgment dismissing the amended complaint against her in her

individual capacity and as cotrustee of the revocable trust,

contending, among other things, that a “gratuitous” payment of over

$133,000 she made to plaintiff in August 2010 more than paid the

outstanding account balance sought by plaintiff. Plaintiff

subsequently moved for summary judgment on, inter alia, its cause of

action for breach of contract against defendant, individually. 

Specifically, plaintiff sought in its motion a determination that

defendant breached the private pay agreement when, in her capacity as

cotrustee of the revocable trust, she used the $54,000 in the

revocable trust at the time of Gorea’s admission for purposes other

than paying plaintiff, as well as damages in the amount due on Gorea’s

account. Supreme Court granted plaintiff’s motion to compel

disclosure and, upon defendant’s stipulation, the court sua sponte

granted plaintiff summary judgment against defendant in her capacity

as executrix of Gorea’s estate. The court denied the cross motion of

defendant and motion of plaintiff for summary judgment. With respect

to the cause of action alleging breach of the private pay agreement,

the court found issues of fact whether defendant’s August 2010 payment

to plaintiff of over $133,000 “effectively reimbursed” plaintiff for

the approximately $54,000 that was transferred from the revocable

trust after Gorea’s admission to plaintiff’s facility. We affirm.

 A “responsible party” for a nursing home patient may “be held

personally liable for the cost of [a patient’s] care if it [is] shown

that [he or] she breached the terms of the agreement by impeding the

nursing home from collecting its fees from the [patient’s] funds or

resources over which [he or she] exercised control” (Sunshine Care

Corp. v Warrick, 100 AD3d 981, 982; see Troy Nursing & Rehabilitation

Ctr., LLC v Naylor, 94 AD3d 1353, 1354-1356, lv dismissed 19 NY3d

1045). Here, we conclude that plaintiff established its prima facie

entitlement to a determination that defendant breached the private pay

agreement by demonstrating defendant’s control over Gorea’s resources,

defendant’s agreement to pay plaintiff from those resources, and the

existence of approximately $54,000 in the revocable trust on the date

Gorea was admitted, which could have been, but was not, used to pay

plaintiff (see Sunshine Care Corp., 100 AD3d at 982). The record thus

establishes that defendant “accepted personal responsibility to

utilize her access to [Gorea’s] funds to pay for [Gorea’s] care and

then breached that agreement by failing to apply available assets to

pay [Gorea’s] nursing home bills” (Troy Nursing & Rehabilitation Ctr.,

94 AD3d at 1354-1355). We nevertheless conclude that the court

properly denied the cross motion and motion with respect to the cause

of action for breach of contract. Although plaintiff established that

defendant breached the private pay agreement, neither party eliminated

all triable issues of fact with respect to the amount of damages, if

any, suffered by plaintiff as a result of defendant’s breach. After

breaching the private pay agreement, defendant made a payment to

plaintiff of over $133,000 in August 2010, and we conclude that there

are issues of fact whether that payment was made “gratuitously,” as

defendant contends, and compensated plaintiff for any damages flowing
-3- 1362 

CA 15-00891 

from defendant’s breach, or whether uncompensated transfers made by

defendant from Gorea’s accounts prior to Gorea’s admission to

plaintiff’s facility were the sole cause of Gorea’s Medicaid

ineligibility. In the latter case, the private pay agreement would

obligate defendant to pay plaintiff the outstanding account balance

plaintiff now seeks, notwithstanding the payment made by defendant in

August 2010. 

Finally, we reject defendant’s contention that disclosure with

respect to Gorea’s accounts has been rendered moot by the entry of a

judgment against Gorea’s estate. 

Entered: February 11, 2016 Frances E. Cafarell

Clerk of the Court