New Jersey appeals court allows an assisted living facility pursue a tortious interference with contractual relationship claim against a discharged resident’s son after the son refused to move his mother out of the nursing home or allow her to discuss her removal with the facility staff. The Orchards at Bartley Assisted Living v. Schleck (N.J. Super. Ct., App. Div., No. A-3481-17T1, March 13, 2019).

At the time of her admission to the Orchards at Bartley assisted living facility, Mrs. Schleck’s son was her agent under a power of attorney. However, Mrs. Schleck herself executed the admission agreement. Later, after she applied for Medicaid, the facility issued a discharge notice because she failed to pay outstanding charges. According to the facility, it thereafter contacted her son about moving Mrs. Schleck from the facility; he refused to cooperate, and told his mother not to cooperate with the facility.

Orchards filed an order to show cause to compel the discharge and payment of fees. It also included claims against Mrs. Schleck’s son. Thereafter, Mrs. Schleck filed and received a discharge of her debts in bankruptcy, and was approved for Medicaid. The facility did not accept her as a Medicaid resident, and she then moved from the facility.

Orchards then filed a new complaint, again including claims against the son for breach of fiduciary duty and tortious interference with contractual relationship. The Law Division dismissed the claims against the son, and the facility appealed.

On appeal, the Appellate Division affirmed the dismissal of the claim for breach of fiduciary duty. Orchards had conceded that the son owed no fiduciary duty to the facility. However, the facility claimed that it was entitled to recover for the son’s alleged breach of fiduciary duty to his mother. The court found no legal support for Orchards’ contention that it was entitled to recover as a third party for breach of fiduciary duty in this context.

However, the Appellate Division reversed the Law Division with regard to the claim of tortious interference with contractual relationship, in which a defendant interferes with a protected business interest intentionally and without justification. At the early stage of a case, a plaintiff’s complaint must be read liberally and, giving Orchards all favorable inferences, the appeals court concluded that it was “constrained” to allow that claim to proceed:

Granting plaintiff all favorable inferences from its allegations that Mr. Schleck refused to pick Ms. Schleck up from the facility and advised Ms. Schleck to refuse to participate in any discussions with Orchards regarding her removal, Mr. Schleck’s conduct may satisfy the unjustified element … [and] may have been intended to benefit Mr. Schleck and to injure Orchards.

 A copy of The Orchards v. Schleck can be found here – The Orchards at Bartley Assisted Living v. Schleck

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Donald D. Vanarelli has been a practicing attorney since 1983 in New Jersey and New York. Don provides legal services in the areas of elder law, estate planning, trust administration, special education, special needs planning and trial advocacy, including probate litigation, will contests, contested guardianships and elder abuse trials.

Don is a Certified Elder Law Attorney, an Accredited Veterans Attorney and a Past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association. Don is a recipient of the Lifetime Achievement Award, the highest honor given by the New Jersey State Bar Association – Elder and Disability Law Section. The Lifetime Achievement Award is bestowed on an attorney with an established history of distinguished service who has made significant contributions in the field of elder and disability law throughout his or her career. Recently, Don was selected by the New Jersey Law Journal as a Top Rated New Jersey Lawyer in 2019.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don was lead counsel representing the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004), in which the New Jersey Supreme Court, for the first time, permitted guardians to engage in public benefits planning to obtain Medicaid eligibility for their wards. Don also represented the plaintiff in a pivotal case entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014) in which the New Jersey Supreme Court, for the first time, permitted a special needs trust to be designated as the beneficiary of a state pension. Don was also co-counsel representing the plaintiff in Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014) in which a federal court ruled, for the first time, that a pension from the Department of Veterans Affairs may not be counted as income in determining Medicaid eligibility.

When he’s not working, Don spends time with his wife, Marion, and his three children, Julianne, Evan and Alex.