| 5706 Fifth Ave., LLC v Louzieh |
| 2013 NY Slip Op 05187 [108 AD3d 589] |
| July 10, 2013 |
| Appellate Division, Second Department |
| 5706 Fifth Avenue, LLC, Appellant, v ElyahouLouzieh, Also Known as Elayhou Louzia, et al.,Respondents. |
—[*1] Jon Ari Lefkowitz, Brooklyn, N.Y., for respondents.
In an action, inter alia, for declaratory relief and to set aside an alleged fraudulentconveyance pursuant to Debtor and Creditor Law article 10, the plaintiff appeals from anorder of the Supreme Court, Kings County (Bayne, J.), dated June 11, 2012, whichdenied its motion for summary judgment on the first and second causes of action.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion forsummary judgment on the first and second causes of action is granted, and the matter isremitted to the Supreme Court, Kings County, for further proceedings consistentherewith.
"Pursuant to Debtor and Creditor Law § 276, '[e]very conveyance made andevery obligation incurred with actual intent, as distinguished from intent presumed inlaw, to hinder, delay, or defraud either present or future creditors, is fraudulent as to bothpresent and future creditors' " (Matter of U.S. Bancorp Equip. Fin., Inc. v Rubashkin, 98 AD3d1057, 1060 [2012]; see Pen Pak Corp. v LaSalle Natl. Bank of Chicago, 240AD2d 384, 386 [1997]). "Direct evidence of fraudulent intent is often elusive. Therefore,courts will consider 'badges of fraud,' which are circumstances that accompanyfraudulent transfers so commonly that their presence gives rise to an inference of intent"(Pen Pak Corp. v LaSalle Natl. Bank, 240 AD2d at 386, quoting MFS/SunLife Trust-High Yield Series v Van Dusen Airport Servs. Co., 910 F Supp 913, 935[SD NY 1995]). A plaintiff that successfully establishes actual intent to defraud isentitled to a reasonable attorney's fee under Debtor and Creditor Law § 276-a(see Ford v Martino, 281 AD2d 587, 588 [2001]).
Here, the plaintiff, which had obtained a judgment against the defendant ElyahouLouzieh, also known as Elayhou Louzia (hereinafter Elyahou), submitted evidence issupport of its motion for summary judgment which demonstrated that Elyahoutransferred his interest in the subject property to his wife, the defendant Kiti Louzia, alsoknown as Zakie Kiti Mattout, with the intent to defraud the plaintiff and hinder thecollection of its judgment. The plaintiff presented evidence of badges of fraud, including,inter alia, a close relationship between the parties to the transaction, inadequateconsideration for the transaction, and the retention of the benefit of the [*2]property by Elyahou, who continued to reside in thepremises following the transfer (see NPR, LLC v Met Fin Mgt., Inc., 63 AD3d 1128, 1129[2009]; Dempster v OverviewEquities, 4 AD3d 495, 498 [2004]). This evidence established the plaintiff'sprima facie entitlement to judgment as a matter of law on its first cause of action, interalia, to set aside the subject conveyance pursuant to Debtor and Creditor Law §276, and on its second cause of action for an award of an attorney's fee pursuant toDebtor and Creditor Law § 276-a.
In opposition, the defendants failed to raise a triable issue of fact (see Zuckermanv City of New York, 49 NY2d 557, 562 [1980]; Gihon, LLC v 501 Second St., LLC, 77 AD3d 708, 709[2010]; NPR, LLC v Met Fin Mgt., Inc., 63 AD3d at 1129). The conclusoryassertion by Elyahou in his affidavit that he transferred the property to his wife because,at that time, they were planning to separate, although they "subsequently reconciled," andthe defendants' unsworn separation agreement, were, under the circumstances of thiscase, insufficient to raise a genuine issue of fact (cf. Rampello v Cioffi, 282AD2d 442, 443 [2001]).
Accordingly, the Supreme Court should have granted the plaintiff's motion forsummary judgment on the first and second causes of action. We remit the matter to theSupreme Court, Kings County, for a determination of the amount of an attorney's fee tobe awarded to the plaintiff on its second cause of action pursuant to Debtor and CreditorLaw § 276-a (see KreislerBorg Florman Gen. Constr. Co., Inc. v Tower 56, LLC, 58 AD3d 694, 696-697[2009]; Ford v Martino, 281 AD2d at 588; Marine Midland Bank vMurkoff, 120 AD2d 122, 129 [1986]).
In addition, since this is, in part, a declaratory judgment action, the matter must alsobe remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia,declaring that the conveyance was made with intent to defraud and is null and void(see Lanza v Wagner, 11 NY2d 317 [1962], appeal dismissed 371 US 74[1962], cert denied 371 US 901 [1962]; Cadle Co. v Organes Enters., Inc., 29 AD3d 927, 929[2006]). Skelos, J.P., Angiolillo, Dickerson and Roman, JJ., concur.