| Richardson v Bryant |
| 2009 NY Slip Op 06975 [66 AD3d 1411] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Morris E. Richardson, Doing Business as Latta Road NursingHome A, Appellant, v Thomas G. Bryant, Respondent, et al.,Defendant. |
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Appeal from an order of the Supreme Court, Monroe County (William P. Polito, J.), enteredApril 10, 2008 in an action pursuant to Debtor and Creditor Law article 10. The order, inter alia,granted the cross motion of defendant Thomas G. Bryant for summary judgment dismissing thecomplaint against him.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action pursuant to Debtor and Creditor Law article10 seeking to set aside conveyances that allegedly were, inter alia, "fraudulent as to plaintiff."Supreme Court properly granted the cross motion of Thomas G. Bryant (defendant) for summaryjudgment dismissing the complaint against him. Plaintiff alleges in the complaint that defendantwas engaged in fraudulent transfers with defendant's father that rendered defendant's fatherunable to pay a future debt owed to plaintiff, but plaintiff has abandoned that allegation onappeal (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). Instead, plaintiffcontends that the court erred in granting defendant's motion because there is an issue of factwhether defendant engaged in fraudulent transfers that rendered defendant's stepmother, ratherthan defendant's father, unable to pay her own future debt to plaintiff. We do not address thatcontention inasmuch as it is based on a cause of action not alleged in the complaint (seeDominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310, 312-313 [1997]).Present—Scudder, P.J., Martoche, Peradotto, Carni and Gorski, JJ. [See 19 Misc3d 1129(A), 2008 NY Slip Op 50947(U).]