“Not A Tale As Old As Time”

One of my areas of practice is proceeding against the Guarantors of assisted living facility or senior community residents, for unpaid fees. Generally, these situations occur when the elderly resident passes away, or is transferred to a medical facility where the medical staff scrutinizes the residents as patients. The majority of the Guarantors are the children of the resident, and not coincidentally, the eldest daughter. (Seriously, over 75% of the Guarantors that we see are the girls. Good thing I have two daughters.)

In any event, this particular client is less hospital, more Really Cool Dorm for Seniors.  I will refer to the resident in this case as “Crazy Old Maurice”.  Maurice was widowed. His only known child, Belle, was unavailable, presumably kidnapped by an anthropomorphic buffalo.

In a process unknown to either myself nor The Dorm, Maurice was admitted as a resident, with the fear that his mind was going, by the Court-appointed attorney acting as his guardian, whom I will call “Gaston”.  Gaston signed off on all the paperwork, which amounted to dozens of pages. Maurice lived in The Dorm for several years, and Gaston transferred all the payments from an escrow account.

Eventually, Maurice passed away, leaving a $10,000 balance. When The Dorm sent an invoice to Gaston, he refused to pay, “I am merely the attorney.” As such, The Dorm sent the matter to us to file suit.

We filed suit, and Gaston continued his refusal to pay.  “I was merely the attorney. I have no relationship to Maurice. I never knew him before, and was just acting in my capacity as attorney.”

The Dorm and the other attorneys in my office began to question whether or not Gaston was liable. Despite signing the Residence Agreement on behalf of Maurice, Gaston did add the legend “As Attorney” or “As Guardian For” after his signature, even on the lines where the signatory was “The Responsible Party”. Gaston added that legend on 11 signatures in the document. Except on one page, the page entitled “Personal Guarantee”.

Accordingly, I brought a Motion for Summary Judgment, which Gaston vehemently fought.  Now, typically in New York, Judges take 90 days to render a decision, based purely on the volume of cases filed and heard every day.

In three, (3 or III or tres) days, we received in the mail (which meant that the Judge rendered the decision on the day the motion was heard), a three page decision categorically granting our Motion.

Essentially, the Court found that since Gaston painstakingly added the  “As Attorney” or “As Guardian For” legend after his signature on each and every signature page, except for the one entitled “Personal Guarantee”, the Court had no choice but to interpret that as intention to bind himself personally. Moreover, the Court noted that he was no mechanic, hunter, or bartender, but an attorney, who should know what he is signing.

I call that a huge victory for this beast of a client.

Timothy Wan is a partner in the firm Smith Carroad Levy & Wan, in Commack, New York, and can be reached at twan@smithcarroad.com and in the first draft of this Tale from the Front, Tim wrote “Tale As Old As Tim.” [cue mild amusement here.]

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