The opinion of the court was delivered by: LEVET
The above-named plaintiff, Mildred B. Hutchins (hereinafter "Mrs. Hutchins") sues defendant, The Bethel Methodist Home (hereinafter "Bethel") for breach of contract. The case was tried to the court.
On or about July 29, 1960 Mrs. Hutchins, a widow, entered into a contract with Bethel whereby Mrs. Hutchins, designated as a "founder," agreed to pay a total of $9,000, a so-called "founder's fee," prior to her admission into the "home," which was located in Ossining, New York. In return, Bethel agreed, among other things, as follows: (1) That Mrs. Hutchins was to have the privilege of occupying a living unit consisting of a single room with lavatory, without private bath, in the home, which was to be subsequently erected, on condition that Mrs. Hutchins paid to Bethel the charge for board and care referred to in the contract; (2) At the time of admission, Mrs. Hutchins must have reasonably good health; (3) Mrs. Hutchins further agreed to pay Bethel an annual charge, payable monthly, quarterly or annually in advance, in the sum based on the cost of board and care determined from time to time by the Board of Directors of the said Bethel which Bethel "agrees will not exceed the rate of $160 per month." (Par. 7 of contract, Pl. Ex. 1.)
The contract specifically provided that Mrs. Hutchins "shall receive all necessary medical services and use of the Home's infirmary." Mrs. Hutchins agreed to pay for medicines and hospitalization if necessary.
Bethel interposed an answer which in substance admitted only the execution of the agreement, a copy of which was annexed to the complaint as Exhibit A.
Subsequently, as a result of testimony submitted on behalf of Bethel at the trial, Bethel was permitted to amend its answer.
In the amended answer defendant admits paragraphs 1, 2, 3 and 13 of the complaint.
Defendant alleges that it is without knowledge or information sufficient to form a belief as to the truth in paragraphs 5 and 6 of the complaint and "therefore denies the same."
Defendant denies each and every allegation contained in paragraphs 7, 8, 9, 10, 11, 12 and 14.
In short, however, defendant admits the following:
(1) Execution of the agreement;
(2) That plaintiff paid all charges properly due and owing under said agreement;
(3) That plaintiff duly performed all of the conditions on her part required thereunder.
The following affirmative defenses are alleged:
"2. Plaintiff's medical condition from April 1972 to November 1972, inclusive, required a degree of skilled nursing care that exceeded what defendant provided or was able to provide at any time in its facilities, either before or after February 7, 1972.
"3. Plaintiff's medical condition from April 8, 1972 to November 25, 1972, as determined by a competent physician, required skilled nursing services which defendant never provided at any time in its infirmary from 1959 to the present.
"4. The Bethel Methodist Home and the Bethel Nursing Home Company, Inc. are separate and distinct corporations and are required to be so under the Public Health Law of the State of New York and codes, rules and regulations of the Department of Health of the State of New York.
"5. The rate for patients in the Bethel Nursing Home Company, Inc. is set by the Department of Health of the State of New York, and changed by it from time to time. At all times during 1972 said rate of $42.00 per day.
"6. The Department of Health of the State of New York required the Bethel Nursing Home Company, Inc. to charge the plaintiff at the full rate of $42.00 per day for her care during the entire period that she was in said Nursing Home."
During the trial, counsel for Bethel requested leave to permit the New York State Department of Health to file a brief amicus curiae. The court granted counsel's request. (133.)
After the close of testimony the court designated the deadline for submission by the parties of their post-trial papers (188-189) and by letter dated January 2, 1974 suggested the time for submission of the amicus curiae memorandum. On January 8, 1974, Donald MacHarg, General Counsel, New York State Department of Health, wrote as follows:
"Re: Mildred B. Hutchins v. The Bethel Methodist Home (72 Civil 5351)
"* * * We have again reviewed the issues in the above entitled case, with which we are familiar, and have concluded that the Department of Health will not request leave to file a brief amicus curiae. * * * Your Honor's willingness to afford this Department an opportunity to file a brief amicus if it is so desired is appreciated."
During trial, counsel for defendant, on direct examination, asked Emilio Argenziano, M.D. (hereinafter "Argenziano"):
"Q. Doctor, when Mildred Hutchins left Cedar Manor in April of 1972, did you make a medical judgment at that time where she should be placed on the third floor of the Bethel Methodist Home or in the new Bethel Nursing Home?" (156.)
Counsel for plaintiff objected and the court sustained the objection on the ground of relevancy. However, the court then took a proffer of proof. (156.) Counsel for defendant restated the question and Argenziano answered, "Yes." As part of the proffer on direct examination, Argenziano then testified that in April of 1972 he judged that Mrs. Hutchins was not a candidate for the Bethel infirmary "because of her physical and mental status." (157-158.) As part of the proffer, on cross-examination by plaintiff's counsel, Argenziano testified in greater detail about the facilities and services available at the Bethel infirmary. (158-162.) Defendant briefed the admissibility of the proffer, but plaintiff failed to reply. After considering the possible relevancy of the proffer, I have decided to admit the direct and cross-examinations of Argenziano under the proffer.
After hearing the testimony of the parties, examining the exhibits and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the ...