| Machado v A. Canterpass, LLC |
| 2014 NY Slip Op 01440 [115 AD3d 652] |
| March 5, 2014 |
| Appellate Division, Second Department |
| Genevieve Machado, Respondent, v A. Canterpass,LLC, et al., Appellants. |
—[*1] Talisman DeLorenz & Pinnisi, P.C., Brooklyn, N.Y. (Dawn M. Pinnisi of counsel),for respondent.
In an action, inter alia, to set aside transfers of real property as fraudulentconveyances under the Debtor and Creditor Law, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.),dated April 27, 2012, as granted the plaintiff's motion, in effect, for summary judgmentto set aside certain conveyances of real property as fraudulent, denied their cross motionto vacate a default judgment entered in another action, with leave to renew in that action,and denied their application for an adjournment in order to submit a reply on that crossmotion.
Ordered that the notice of appeal from so much of the order as denied the defendants'application for an adjournment is treated as an application for leave to appeal from thatportion of the order, and leave to appeal from that portion of the order is granted (seeCPLR 5701); and it is further,
Ordered that the order is affirmed insofar as appealed from, with costs.
After the plaintiff sent notice of her intention to pursue an action against AstelGroup, Inc. (hereinafter Astel), to recover damages for personal injuries she sustained onAstel's property, the defendants Roman Mosejczuk and Grezegorz Pasternak, asprincipals of Astel, arranged for Astel to convey that property and other property itowned, without consideration, to the defendants A. Canterpass, LLC (hereinafterCanterpass), and Theodore Tesla, LLC (hereinafter Tesla), companies of whichMosejczuk and Pasternak were also principals, and dissolved Astel. After Astel failed toanswer or appear in the plaintiff's personal injury action against it, the plaintiff obtained adefault judgment against it and another company in the sum of $220,747.25.
The plaintiff then commenced the instant action against Canterpass, Tesla,Mosejczuk, and Pasternak, seeking, inter alia, to set aside the conveyances of realproperty by Astel to Canterpass and Tesla as fraudulent conveyances under the Debtorand Creditor Law. In response to the plaintiff's motion, in effect, for summary judgmenton her causes of action to set aside those conveyances, the defendants cross-moved tovacate Astel's default in the personal injury action. [*2]After the plaintiff opposed that cross motion, the SupremeCourt granted the plaintiff's motion, in effect, for summary judgment to set aside theconveyances as fraudulent, denied the defendants' cross motion to vacate the default inthe personal injury action, with leave to renew in that action, and denied the defendants'request for an adjournment in order to submit a reply on the cross motion.
The defendants' cross motion to vacate the default judgment against Astel in theplaintiff's personal injury action was properly denied with leave to renew in that action,as "[a] motion for relief from a default judgment must be brought in the original action orproceeding" (Matter ofCalabrese Bakeries, Inc. v Rockland Bakery, Inc., 83 AD3d 1060, 1061 [2011]).Moreover, the denial of the defendants' request for an adjournment in order to submit areply on the cross motion was not an improvident exercise of the court's discretion (see Matter of Steven B., 6NY3d 888, 889 [2006]; Matter of Anthony M., 63 NY2d 270, 283 [1984]).
The plaintiff made a prima facie showing that she was entitled to judgment as amatter of law on her cause of action to set aside the conveyances as fraudulent pursuantto Debtor and Creditor Law § 276, and the defendants failed to raise a triable issueof fact. The plaintiff submitted clear and convincing evidence establishing that theconveyances of the properties at issue by Astel to Canterpass and Tesla were made withthe intent to hinder, delay, or defraud her ability to collect on her claim against Astel.There was evidence that the conveyances were made shortly after the plaintiff sent hersecond notice to Astel of her intent to pursue her claim for personal injuries arising out ofan accident at Astel's property. In addition, the conveyances were made for noconsideration, and the principals of the transferor, Astel, are also principals of thetransferees, Canterpass and Tesla, such that the same individuals had ownership andcontrol over the conveyed properties, before and after the conveyances.
Based on these "badges of fraud," and the defendants' failure to proffer anylegitimate explanation for the conveyances, the defendants' actual fraudulent intent isreadily inferrable, and the plaintiff is entitled to a judgment setting those conveyancesaside under Debtor and Creditor Law § 276 (Pen Pak Corp. v LaSalle Natl.Bank of Chicago, 240 AD2d 384, 386 [1997]; see Kreisler Borg Florman Gen. Constr. Co., Inc. v Tower 56,LLC, 58 AD3d 694, 696 [2009]; Matter of CIT Group/Commercial Servs., Inc. v 160-09 JamaicaAve. Ltd. Partnership, 25 AD3d 301, 303 [2006]; B.M.H. Mgt., Inc. v 81 & 3 ofWatertown, Inc., 13 AD3d 1182 [2004]; Jensen v Jensen, 256 AD2d1162 [1998]; Dillon v Dean, 236 AD2d 360 [1997]; Marine Midland Bank vMurkoff, 120 AD2d 122 [1986]).
Accordingly, the Supreme Court properly granted the plaintiff's motion, in effect, forsummary judgment to set aside the conveyances as fraudulent, denied the defendants'cross motion to vacate the default in the personal injury action, with leave to renew inthat action, and denied the defendants' request for an adjournment in order to submit areply on the cross motion.
In light of our determination, we need not address the parties' remaining contentions.Dillon, J.P., Balkin, Chambers and Cohen, JJ., concur.