NCRNC, LLC v. Angona

209 A.D.3d 1199

176 N.Y.S.3d 383

NCRNC, LLC, Doing Business as Northeast Center for Rehabilitation and Brain Injury, Appellant,

v. Douglas ANGONA, Individually and as Power of Attorney for Sylvia Lehtinen, Defendant,andRobert Gibson, as Commissioner of the Columbia County Department of Social Services, Respondent.

533462

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

Calendar Date: September 14, 2022

Decided and Entered: October 27, 2022

Hinman, Howard & Kattell, LLP, Albany (Linda B. Johnson of counsel), for appellant.

Johnson & Laws, LLC, Clifton Park (Nicole C. Haddadnia of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from an order of the Supreme Court (James P. Gilpatric, J.), entered April 13, 2021 in Ulster County, which, among other things, granted defendant Commissioner of Columbia County Department of Social Services’ motion to dismiss the amended complaint against him.

Plaintiff, a licensed nursing home facility, provided health care services to Sylvia Lehtinen from November 20, 2015 through September 8, 2016. After Lehtinen's health insurance ceased covering plaintiff's services, Lehtinen's son and attorney-in-fact, defendant Douglas Angona, failed to apply for medical assistance benefits on her behalf or otherwise pay her bill. In July 2016, plaintiff submitted a chronic care Medicaid application to the Columbia County Department of Social Services (hereinafter DSS), purportedly on Lehtinen's behalf. No decision on that application was rendered.

In November 2018, plaintiff commenced this action against defendants, setting forth two causes of action against defendant Commissioner of Columbia County Department of Social Services. In the first cause of action, plaintiff sought a judgment declaring that Lehtinen was eligible for full Medicaid benefits beginning April 1, 2016 through September 8, 2016, directing the Commissioner to process and approve plaintiff's July 2016 application and awarding plaintiff certain damages. In the second cause of action, plaintiff alleged that the Commissioner negligently failed to discharge its duty to provide Medicaid coverage to Lehtinen, an allegedly eligible patient, and thereby proximately caused certain damages. Through causes of action for breach of contract, nonpayment of an account, unjust enrichment, fraudulent conveyance and breach of fiduciary duty, plaintiff also sought damages from Angona in the amount of Lehtinen's private pay balance.

The Commissioner answered and later moved to dismiss the amended complaint on several CPLR 3211(a) grounds, arguing, in pertinent part, that plaintiff failed to satisfy notice of claim requirements and that the July 2016 application was a nullity upon which DSS had no obligation to pass because plaintiff was never authorized to act on Lehtinen's behalf. Plaintiff opposed and cross-moved for certain relief not presently relevant. Supreme Court generally agreed with the Commissioner, dismissing the amended complaint against him in the absence of a valid application and further agreeing that plaintiff's second cause of action, expressly sounding in tort, required a written notice of claim. Plaintiff appeals.

We agree with Supreme Court that the July 2016 application was a nullity and that the Commissioner therefore conclusively established that plaintiff can maintain no cause of action against him (see generally Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ; Budin v. Davis, 172 A.D.3d 1676, 1678, 101 N.Y.S.3d 487 [3d Dept. 2019] ). An application for public assistance, including Medicaid, must be made on a state-prescribed form, and, if "the applicant, whose signature is required, is incapable of signing the application because of physical incapabilities, or mental incompetency, the application shall be signed on behalf of such person by his [or her] authorized representative" ( 18 NYCRR 350.4 [c][4]; see 18 NYCRR 360–1.2 [b]; 360–1.4[i]; 360–2.2[d][1]; see also 42 CFR 435.923 [a][1]). Here, the July 2016 application was signed by plaintiff's Medicaid coordinator, purportedly acting as Lehtinen's "authorized representative" and submitted "pending legal guardianship."¹ However, the record contains admissions that neither plaintiff nor its Medicaid coordinator was ever so authorized. Plaintiff points to an affirmation in the record in which Angona's counsel asserts that the July 2016 application was valid and that it is customary for a Medicaid coordinator to sign such an application on behalf of a patient. These self-serving and legally unsupported allegations were appropriately disregarded by Supreme Court.

Plaintiff next mistakenly relies upon ( Long Beach Mem. Nursing Home v. D'Elia, 108 A.D.2d 901, 485 N.Y.S.2d 785 [2d Dept. 1985] ). The question therein was whether the plaintiff nursing home was required to make a diligent effort to obtain a power of attorney from the patient prior to pursuing, on the patient's behalf, an administrative appeal from an adverse medical assistance determination ( id. at 902, 485 N.Y.S.2d 785 ). The regulation governing a representative for that purpose requires that "[a]n individual or organization, other than an attorney, representing an appellant must have a signed, written authorization from the appellant, unless it is impracticable for him/her to execute one" ( 18 NYCRR 519.9 ). No impracticability exception, excusing prior authorization to act on an applicant's behalf, is provided for in the regulations controlling assistance applications in the first instance (see 18 NYCRR 350.3 [a][1]; 350.4[c][4]; 360–2.2[d][1]; see also 42 CFR 435.923 [a][1]; [f]).

For the first time on appeal, plaintiff argues that the Medicaid application itself contemplates a nursing home applying for assistance on behalf of an incapacitated resident. The form plaintiff points to states that it must be completed if someone other than the applicant has signed the Medicaid application and instructs that the signatory must either provide the documentation that authorizes them to so apply or attest that the applicant is incompetent or incapacitated...