Merlino v. Knudson

184 N.Y.S.3d 820

Ann MERLINO, etc., et al., appellants,

v.Leonore KNUDSON, et al., respondents.

2020-07327

Index No. 151512/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 9, 2022

March 1, 2023

Leavitt Kerson & Sehati, Forest Hills, NY (Paul E. Kerson of counsel), for appellants.

Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Sarah M. Ziolkowski of counsel), for respondents Integrity Service, Inc., and Claudette Duff.

Sgarlato & Sgarlato, Staten Island, NY (Michael D. Fitzgerald of counsel), for respondents Leonore Knudson, Viola Houston, John Knudson, Kenneth Knudson, and Elisa Iannacone.

Nixon Peabody LLP, Buffalo, NY (Tracey B. Scarpello of counsel), for respondent Home Instead, Inc., and William P. Perniciaro, Staten Island, NY, for respondent Care for Seniors, LLC (one brief filed).

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for conversion, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), dated September 18, 2020. The order, insofar as appealed from, (1) granted that branch of the motion of the defendants Home Instead, Inc., and Care for Seniors, LLC, which was for summary judgment dismissing the amended complaint insofar as asserted against them, (2) granted those branches of the separate motions of the defendants Leonore Knudson, Viola Houston, John Knudson, Kenneth Knudson, and Elisa Iannacone and the defendants Integrity Service, Inc., and Claudette Duff which were pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them, and (3) denied the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to file a second amended complaint to assert a cause of action alleging breach of contract against the defendants Home Instead, Inc., and Care for Seniors, LLC.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiffs are three siblings of Ida Merlino. In or about October 2012, the Supreme Court appointed a guardian of the person and property of Ida Merlino in a guardianship proceeding commenced by the plaintiff Ann Merlino. Ida Merlino, the oldest of twelve siblings, lived in the family home in Staten Island until 2016, when she moved to a nursing home. From May 13, 2013, through August 2014, Ida Merlino received home care services from the defendant Integrity Service, Inc., which is owned by the defendant Claudette Duff (hereinafter together the Integrity defendants). The defendant Care for Seniors, LLC (hereinafter Care for Seniors), an independently-owned franchisee of the defendant Home Instead, Inc. (hereinafter Home Instead, and together with Care for Seniors, the Home Instead defendants), provided home care services to Ida Merlino at the family home from July 30, 2014, to February 14, 2016. The defendants Leonore Knudson, Viola Houston, John Knudson, Kenneth Knudson, and Elisa Iannacone (hereinafter collectively the Knudson defendants) are the plaintiffs’ estranged relatives.

On or about June 24, 2019, the plaintiffs commenced this action against the Integrity defendants, Home Instead, and the Knudson defendants. On or about August 16, 2019, the plaintiffs filed an amended complaint against those defendants and Care for Seniors, asserting one cause of action for conversion. The plaintiffs alleged, inter alia, that upon taking possession of the family home in or about February 2017, they discovered that several items of personal property were missing, and that each of the defendants had access to the home immediately before the plaintiffs took possession. In addition, the plaintiffs alleged that John Knudson wrongfully removed a sum of money from certain bank accounts of Ann Merlino. In an unverified bill of particulars dated December 13, 2019, the plaintiffs indicated that alleged converted items were taken "[d]uring the years 2012 to 2017 when each of these Defendants had access" to the family home. In a subsequent verified bill of particulars dated February 21, 2020, the plaintiffs clarified that the alleged wrongful conversion of money by John Knudson occurred, at the latest, in 2012.

The Home Instead defendants moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against them as time-barred. The Knudson defendants and the Integrity defendants separately moved, among other things, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them. The plaintiffs opposed the motions and cross-moved pursuant to CPLR 3025(b) for leave to file a second amended complaint to assert a cause of action for breach of contract against the Home Instead defendants, alleging that the plaintiffs were third-party beneficiaries of an alleged contract between Ida Merlino's guardian and the Home Instead defendants for services provided at the family home. In an order dated September 18, 2020, the Supreme Court, inter alia, granted that branch of the motion of the Home Instead defendants which was for summary judgment dismissing the amended complaint insofar as asserted against them as time-barred, granted those branches of the separate motions of the Knudson defendants and the Integrity defendants which were pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them on the ground that the action was time-barred, and denied the plaintiffs’ cross-motion. The plaintiffs appeal.

"Leave to amend a pleading should be freely given (see CPLR 3025[b] ), provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit" ( Spodek v. Neiss, 104 A.D.3d 758, 759, 961 N.Y.S.2d 251 [internal quotation marks omitted]; see Mirro v. City of New York, 159 A.D.3d 964, 967, 74 N.Y.S.3d 356 ). The decision whether to grant such leave is within the court's sound discretion and "the exercise of that discretion will not be lightly disturbed" ( Thomson v. Watchtower Bible & Tract Socy. of N.Y., Inc., 198 A.D.3d 996, 997–998, 156 N.Y.S.3d 382 [internal quotation marks omitted]; see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 ).

A party asserting rights as a third-party beneficiary "must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost" ( Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786, 811 N.Y.S.2d 294, 844 N.E.2d 748 [internal quotation marks omitted]; see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 ). "[A]n intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiary with no right to enforce the particular contracts" ( Port Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 655, 389 N.Y.S.2d 327, 357 N.E.2d 983 [internal citations omitted]; see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d 704, 710. 70 N.Y.S.3d 893, 94 N.E.3d 456 ; see Old Crompond Rd., LLC v. County of Westchester, 201 A.D.3d 806, 808, 162 N.Y.S.3d 71 ). "Courts generally have recognized a third party's right to enforce a contract in two situations: when the third party is the only one who could recover for the breach of contract or when it is otherwise clear from the language of the contract that there was an intent to permit enforcement by the third party" ( Old Crompond Rd., LLC v. County of Westchester, 201 A.D.3d at 808–809, 162 N.Y.S.3d 71 [internal quotation marks omitted]; see Financial Assistance, Inc. v. Graham, 191 A.D.3d 952, 956, 143 N.Y.S.3d 380 ).

The Supreme Court providently exercised its discretion in denying the plaintiffs’ cross-motion for leave to file a second amended complaint. In the proposed cause of action alleging breach of...