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Hillside Manor Rehabilitation and Extended Care Center, LLC Doing Business As Hillside Manor Nursing Center v. Jacqueline Barnes

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 29, 2013

HILLSIDE MANOR REHABILITATION AND EXTENDED CARE CENTER, LLC DOING BUSINESS AS HILLSIDE MANOR NURSING CENTER,
APPELLANT,
v.
JACQUELINE BARNES,
RESPONDENT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered October 27, 2010.

Hillside Manor Rehabilitation & Extended Care Ctr., LLC v Barnes

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2013

PRESENT: RIOS, J.P., WESTON and ALIOTTA, JJ

The judgment, after a non-jury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

Plaintiff nursing home facility commenced this action to recover the sum of $6,830.40 allegedly due it for services that plaintiff had provided to defendant's mother, who had been a resident in the facility from July 2007 until her death in February 2008. Plaintiff asserted causes of action for fraud and conversion, alleging that defendant had failed to provide it with her mother's social security and pension payments that had been deposited into a joint bank account which defendant held with her mother. Following a non-jury trial, the complaint was dismissed.

In order to prevail on a cause of action asserting fraud, "the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 852 [2012]). In order to establish a cause of action for conversion, a plaintiff must prove that it is the legal owner, or has an immediate right of possession, of tangible personal property or specific money and that the defendant's actions have interfered with the plaintiff's rights of ownership or possession (see Eight In One Pet Prods. v Janco Press, Inc., 37 AD3d 402 [2007]; Estate of Giustino v Estate of DelPizzo, 21 AD3d 523 [2005]; Batsidis v Batsidis, 9 AD3d 342 [2004]).

Plaintiff presented no evidence establishing that defendant had agreed to provide it with her mother's social security and pension payments. Plaintiff also failed to establish that it was the legal owner of, or had a right to possess, the money deposited into the joint bank account. With respect to plaintiff's contention regarding the court's alleged bias, we note that a "trier of fact may apply logic, common sense and everyday experience to interpret the admitted evidence, but may not engage in conduct that tends to put the factfinder in possession of evidence that was not introduced (see People v Brown, 48 NY2d 388, 393 [1979])" (People v Allen, 90 AD3d 1082, 1083 [2011]). Herein, although the trial judge noted her own experience in dealing with Medicaid cases, the appellate record does not indicate that the court based its decision on its own knowledge or became an unsworn witness, inasmuch as the court's determination is overwhelmingly supported by the record (see Matter of Simone D., 32 AD3d 931 [2006]). Defendant's remaining contentions are unpreserved for appellate review or lack merit. In view of the foregoing, the Civil Court properly dismissed the complaint.

Accordingly, the judgment is affirmed.

Rios, J.P., Weston and Aliotta, JJ., concur. Decision Date: March 29, 2013

20130329

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