| Zanani v Meisels |
| 2010 NY Slip Op 08097 [78 AD3d 823] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Doron Zanani, Appellant, v Isaac Meisels, Respondent, etal., Defendant. |
—[*1] Wachtel & Masyr, LLP, New York, N.Y. (Howard Kleinhendler and David Yeger ofcounsel), for respondent.
In an action pursuant to the Debtor and Creditor Law to set aside an allegedly fraudulentconveyance of real property, the plaintiff appeals from an order of the Supreme Court, KingsCounty (Balter, J.), dated August 4, 2009, which granted the motion of the defendant IsaacMeisels to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211 (a) (1)and (7).
Ordered that the order is affirmed, with costs.
In 2001 the defendant Miriam Schvimmer, formerly known as Miriam Schlesinger, and herhusband, retained the plaintiff as an attorney to represent them in certain real estate dealings. Theplaintiff brought a partition action on their behalf. In 2006, the plaintiff commenced an actionagainst the Schvimmers to recover counsel fees of approximately $28,635, and eventuallyobtained a judgment against them in the total sum of $32,021.48.
Unable to collect on the judgment, the plaintiff commenced two actions against theSchvimmers, claiming that they fraudulently transferred certain properties owned by them tothird parties without appropriate consideration in order to become insolvent. The instant actionagainst Miriam Schvimmer and Isaac Meisels is to set aside an allegedly fraudulent conveyanceof real property located on Taylor Street in Brooklyn to Meisels. While Schvimmer defaulted inappearing and answering, Meisels moved to dismiss the complaint insofar as asserted against himpursuant to CPLR 3211 (a) (1) and (7). The causes of action against Meisel were based on Debtorand Creditor Law §§ 273 and 276. The Supreme Court granted the motion, and weaffirm.
Debtor and Creditor Law § 273 provides that "[e]very conveyance made and everyobligation incurred by a person who is or will be thereby rendered insolvent is fraudulent. . . without regard to his [or her] actual intent if the conveyance is made or theobligation is incurred without a fair consideration." "A finding of constructive fraud pursuant tosection 273 may thus be predicated upon proof of insolvency and lack of fair consideration,without a showing of actual motive or intent to defraud" (American Panel Tec v Hyrise, Inc., 31 AD3d 586, 587 [2006];see Berner [*2]Trucking v Brown, 281 AD2d 924 [2001];Gallagher v Kirschner, 220 AD2d 948 [1995]; Matter of American Inv. Bank vMarine Midland Bank, 191 AD2d 690, 692 [1993]). On the other hand, section 276 requiresproof that the transferor actually intended to "hinder, delay, or defraud" any present or futurecreditors (Debtor and Creditor Law § 276; see Kreisler Borg Florman Gen. Constr. Co., Inc. v Tower 56, LLC, 58AD3d 694, 696 [2009]; Matter ofCIT Group/Commercial Servs., Inc. v 160-09 Jamaica Ave. Ltd. Partnership, 25 AD3d301, 303 [2006], citing Berner Trucking v Brown, 281 AD2d at 925).
Even accepting the allegations in the complaint as true (see Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]), Meisels's documentary submissions in support of hismotion conclusively established "a defense as a matter of law" with respect to the cause of actionpursuant to Debtor and Creditor Law § 273 (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; see CPLR 3211 [a] [1]; Fleming v Kamden Props., LLC, 41AD3d 781 [2007]; Klein vGutman, 12 AD3d 417, 418 [2004]), in that, inter alia, any alleged fraudulentconveyance between Schvimmer and Meisels failed to render the debtor, Schvimmer, insolventas required by Debtor and Creditor Law § 273.
With respect to Debtor and Creditor Law § 276, the complaint failed to allege with therequisite specificity a cause of action upon which relief could be granted sounding in actual fraudagainst Meisels (see CPLR 3016 [b]; 3211 [a] [7]; Barclay Arms v Barclay ArmsAssoc., 74 NY2d 644, 646-647 [1989]; Flora v Kingsbridge Homes, 214 AD2d 834,836 [1995]), or that he intentionally "hinder[ed], delay[ed] or defraud[ed] present or futurecreditors" (Debtor and Creditor Law § 276; see Galgano v Ortiz, 287 AD2d 688,689 [2001]). Although the plaintiff attempts to impute to Meisels knowledge of the alleged fraudand lack of good faith based on his common religious affiliation and alleged familial relationshipwith Schvimmer, such allegations do not tend to establish a common scheme to defraud betweenthem (see Galgano v Ortiz, 287 AD2d at 689). Accordingly, the Supreme Court properlygranted Meisels's motion to dismiss the complaint insofar as asserted against him. Mastro, J.P.,Balkin, Eng and Hall, JJ., concur.