| Terry v Belfort |
| 2010 NY Slip Op 01636 [70 AD3d 1028] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Douglas Terry, Respondent, v Jordan R. Belfort et al.,Defendants, and Nadine Belfort, Appellant. |
—[*1] Magnozzi & Kye, LLP, Roslyn Heights, N.Y. (Mark F. Magnozzi of counsel), forrespondent.
In an action, inter alia, pursuant to Debtor and Creditor Law article 10 to set aside thetransfer of certain assets and real property as fraudulent, the defendant Nadine Belfort appeals, aslimited by her notices of appeal and brief, from (1) so much of an order of the Supreme Court,Nassau County (Martin, J.), entered July 8, 2008, as denied those branches of her motion whichwere for summary judgment dismissing the first through sixth causes of action in the amendedcomplaint insofar as asserted against her, and (2) so much of an order of the same court enteredDecember 12, 2008, as, in effect, denied her motion for leave to reargue.
Ordered that the appeal from so much of the order entered December 12, 2008, as, in effect,denied the appellant's motion for leave to reargue is dismissed; and it is further,
Ordered that the order entered July 8, 2008, is reversed insofar as appealed from, on the law,and those branches of the defendant's motion which were for summary judgment dismissing thefirst through sixth causes of action in the amended complaint insofar as asserted against her aregranted; and it is further,
Ordered that one bill of costs is awarded to the appellant.
The appeal from so much of the order entered December 12, 2008, as, in effect, denied theappellant's motion for leave to reargue must be dismissed, as no appeal lies from the denial ofleave to reargue (see Consolidated Resources, LLC v 210-220-230 Owner's Corp., 59AD3d 579, 580 [2009]).
The plaintiff obtained a money judgment against the defendant Jordan Belfort (hereinafterBelfort) in connection with the loss of funds that the plaintiff had invested in a stock brokerageaccount managed, in part, by Belfort. After the plaintiff obtained the judgment and [*2]commenced the instant action to set aside Belfort's allegedfraudulent transfer of certain assets to the defendant Nadine Belfort (hereinafter the appellant),Belfort pleaded guilty, in the United States District Court for the Eastern District of New York,to charges of securities fraud and money laundering conspiracy. In connection with Belfort's pleaof guilty, the District Court ordered the creation of a restitution fund (hereinafter the Fund) fromassets forfeited by Belfort, and directed that victims of Belfort's fraudulent conduct would beentitled to a pro rata distribution from the Fund on the condition that they waive their right, interalia, to enforce any judgments against Belfort, except as against any forfeiture or restitutionfunds. After having been unequivocally advised of this condition, the plaintiff accepted adistribution from the Fund.
The appellant demonstrated her prima facie entitlement to judgment as a matter of lawdismissing the first through sixth causes of action in the amended complaint insofar as assertedagainst her, which sought to set aside certain allegedly fraudulent transfers of assets and realproperty to her from Belfort. Having accepted a distribution from the Fund, the plaintiff islimited by his own waiver to enforcing the judgment obtained against Belfort against anyrestitution or forfeiture funds and, concomitantly, is barred from enforcing his judgment directlyagainst Belfort's assets, including any assets now alleged to have been fraudulently conveyed tothe appellant. Since the plaintiff cannot enforce the debt against the assets allegedly fraudulentlyconveyed to the appellant, he is no longer a creditor aggrieved by that alleged fraudulentconveyance (see State of Rio de Janeiro v Rollins & Sons, Inc., 299 NY 363, 366-367[1949]; Oparaji v Madison Queens-Guy Brewer, 302 AD2d 439, 440 [2003];Washington 1993 v Reles, 255 AD2d 745, 747 [1998]).
The plaintiff failed to raise a triable issue of fact in response to the appellant's prima facieshowing of entitlement to judgment as a matter of law. Contrary to the plaintiff's contention, themoney that the plaintiff received from the Fund did not constitute a partial payment by thedebtor, which the plaintiff was entitled to accept while reserving his right to collect theremainder of the debt (cf. Horn Waterproofing Corp. v Bushwick Iron & Steel Co., 66NY2d 321, 322, 327 [1985]; Masi v Equitable Variable Life Ins. Co., 178 AD2d 515[1991]). Rather, the plaintiff accepted a distribution from a restitution fund created tocompensate victims of securities fraud. The distribution was made pursuant to a "Stipulation andOrder," which expressly conditioned acceptance of the distribution on waiver of the right toenforce any judgments against Belfort, and did not contain any provision allowing the eligibleclaimants to reserve their rights to enforce judgments entered against Belfort by pursuing assetsBelfort allegedly fraudulently conveyed to third parties. Furthermore, the order did not authorizethe individual charged with distributing the sums in the Fund to permit such a reservation ofrights. Accordingly, the Supreme Court erred in determining that a question of fact existed as towhether the plaintiff reserved his right to enforce his judgment against assets Belfort allegedlyfraudulently conveyed to the appellant. As the plaintiff failed to raise any triable issues of fact,those branches of the appellant's motion which were for summary judgment dismissing the firstthrough sixth causes of action in the amended complaint insofar as asserted her should have beengranted. Covello, J.P., Santucci, Miller and Eng, JJ., concur.