| Riback v Margulis |
| 2007 NY Slip Op 06852 [43 AD3d 1023] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Esther Aronson Riback et al., Appellants, v NaimMargulis, Respondent. |
—[*1] Bukh & Associates, PLLC, Brooklyn, N.Y. (Yuliya Vangorodska of counsel), forrespondent.
In an action, inter alia, pursuant to Debtor and Creditor Law article 10 to set aside the transfer ofassets as fraudulent, which was transferred to the Surrogate's Court, Kings County for dispositionby order of the Supreme Court, Kings County (Johnson, J.), dated May 3, 2006, which referred toa pending proceeding in the Surrogate's Court under file No. 2314/03, the plaintiffs appeal froman order of the Surrogate's Court, Kings County (Lopez-Torres, S.), dated October 2, 2006,which granted those branches of the defendant's motion which were pursuant to CPLR 3211 (a)(7) to dismiss the complaint for failure to state a cause of action and pursuant to CPLR 3211 (a)(10) for failure to join a necessary party.
Ordered that the order is affirmed, with costs.
Although in assessing a motion to dismiss made pursuant to CPLR 3211 (a) (7), the factspleaded are presumed to be true and are accorded every favorable inference, bare legalconclusions as well as factual claims flatly contradicted by the record are not entitled to any suchconsideration (see Morone v Morone, 50 NY2d 481 [1980]; Gershon v Goldberg, 30 AD3d372, 373 [2006]; Mohan v Hollander, 303 AD2d 473 [2003]). The Surrogate's Courtproperly determined that the speculative and conclusory allegations of the complaint failed tostate a cause of action pursuant to Debtor and Creditor Law § 273, and failed to state acause of action to recover damages for [*2]misappropriation.Under the circumstances of this case, the Surrogate's Court also properly concluded thatdismissal was warranted based upon the plaintiffs' failure to join a necessary party to the action(see CPLR 1001 [a]; 3211 [a] [10]; Braun Farms v Goldman, 296 AD2d472, 473 [2002]; Ranno v Ranno, 2 Misc 2d 940 [1956]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Covello, McCarthy andDickerson, JJ., concur.