| Estate of Shefner v Beraudiere |
| 2015 NY Slip Op 02916 [127 AD3d 442] |
| April 7, 2015 |
| Appellate Division, First Department |
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| Estate of Lorette Jolles Shefner, Deceased, et al.,Respondents, v Galerie Jacques De La Beraudiere et al., Defendants, and YvesBouvier, Appellant. |
Storch Amini & Munves PC, New York (John W. Brewer of counsel), forappellant.
Alston & Bird LLP, New York (Steven L. Penaso of counsel), forrespondents.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered November14, 2013, which, to the extent appealed from, denied defendant Bouvier's motion todismiss the first amended complaint as against him, unanimously reversed, on the law,without costs, and the motion granted. The Clerk is directed to enter judgment dismissingthe first amended complaint as against Bouvier.
In this action, plaintiffs assert that defendant Bouvier assisted with the fraudulenttransfer of a piece of artwork (the de Kooning Piece), which included falsely claimingownership of the painting, in order to deprive plaintiffs of monies to which they areentitled pursuant to a federal default judgment. The first amended complaint alleges thatBouvier's claims to ownership are false and that he "has never owned the de KooningPiece, and presently has no ownership interest in the de Kooning Piece."
The primary issue on this appeal is whether the first amended complaint fails to statea claim against Bouvier. Providing assistance to an alleged transferee does not state aclaim sounding in fraudulent conveyance and, under New York law, there is no claim foraiding and abetting a fraudulent conveyance (Federal Deposit Ins. Corp. v Porco,75 NY2d 840 [1990]). It cannot be said that the facts alleged in the first amendedcomplaint, even when given the benefit of every favorable inference, have asserted thatBouvier had "dominion or control" over the de Kooning Piece, or that he "benefitted inany way from the conveyance," which is necessary to state a claim under a fraudulenttransfer theory (id. at 842).
Additionally, plaintiffs are estopped from asserting the theory that Bouvier iscurrently the beneficial owner of the de Kooning Piece, as they previously assumed adirectly contrary position in this proceeding in order to effect an attachment. "[A] partywho assumes a certain [*2]position in a legal proceedingmay not thereafter, simply because his interests have changed, assume a contraryposition" (Karasik v Bird, 104 AD2d 758, 758-759 [1st Dept 1984]).Concur—Friedman, J.P., Acosta, Moskowitz, Richter and Kapnick, JJ. [PriorCase History: 2013 NY Slip Op 32934(U).]