| Prestige Caterers, Inc. v Siegel |
| 2011 NY Slip Op 07022 [88 AD3d 679] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Prestige Caterers, Inc., Respondent, v Steven Siegel et al.,Appellants. |
—[*1] Zisholtz & Zisholtz, LLP, Mineola, N.Y. (Robert Vadnais of counsel), forrespondent.
In an action, inter alia, to set aside allegedly fraudulent conveyances, the defendants appealfrom an order of the Supreme Court, Nassau County (Mahon, J.), dated March 7, 2011, whichdenied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action.
Ordered that the order is affirmed, with costs.
In 1998 the plaintiff catering company was hired by nonparty Stanley Siegel (hereinafter thefather) to cater several functions in connection with the marriage between his son, the defendantSteven Siegel, and the defendant Aliza Siegel (hereinafter together the defendants). After thesecatering services were rendered, the remaining balance owed to the plaintiff was $35,586. Thefather tendered the plaintiff a check that was dishonored for insufficient funds.
After obtaining money judgments against the father, the father's wife, and a corporate entitycontrolled by the father, the plaintiff commenced this action against the defendants to, amongother things, set aside allegedly fraudulent conveyances. The plaintiff alleged, inter alia, that thefather fraudulently conveyed his assets and funds to the defendants, without consideration,thereby rendering him insolvent and ensuring that the plaintiff's judgment against him could notbe satisfied.
The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) on the groundthat it failed to state a cause of action. The defendants argued that the assets allegedly [*2]transferred could not be fraudulently conveyed as a matter of lawsince those assets consisted solely of social security benefits against which the plaintiff could notenforce the debt. The Supreme Court, upon reviewing the four corners of the complaint, deniedthe defendants' motion. We affirm.
"When assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion todismiss, the court must afford the pleadings a liberal construction, accept the allegations of thecomplaint as true and provide plaintiff . . . 'the benefit of every possible favorableinference' " (AG Capital FundingPartners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005], quoting Leonv Martinez, 84 NY2d 83, 87-88 [1994]). A court must "determine only whether the facts asalleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d at 87-88;see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).
Although social security benefits are protected from "execution, levy, attachment,garnishment, or other legal process" (42 USC § 407 [a]; see Matter of Tomeck, 8 NY3d724, 731 [2007]), and, therefore, do not constitute "assets" as defined in Debtor and CreditorLaw § 270, the complaint adequately alleges the fraudulent conveyance of other assets andfunds which are "not exempt from liability for [the alleged] debts" (id.; cf. Terry v Belfort, 70 AD3d 1028,1030 [2010]). Accordingly, contrary to the defendants' contention, the allegations of thecomplaint sufficiently set forth causes of action under the Debtor and Creditor Law, and theSupreme Court properly denied the defendants' motion to dismiss the complaint (see Gateway I Group, Inc. v Park Ave.Physicians, P.C., 62 AD3d 141, 149 [2009]; Gihon, LLC v 501 Second St., LLC, 29 AD3d 629, 630 [2006]).Skelos, J.P., Eng, Austin and Miller, JJ., concur.