| Ehrenkranz v 58 MHR, LLC |
| 2015 NY Slip Op 03124 [127 AD3d 918] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| John Ehrenkranz et al., Respondents, v 58 MHR, LLC,et al., Appellants. |
Sam P. Israel, P.C., New York, N.Y., for appellants.
LePatner & Associates, LLP, New York, N.Y. (Henry H. Korn of counsel), forrespondents.
In an action, inter alia, to recover damages for conversion, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Mayer, J.), dated September 6, 2012, as, in effect, granted that branch of the plaintiffs'motion which was for an order of attachment to the extent of preliminarily enjoining,restraining, and preventing them from assigning, disposing of, selling, encumbering,mortgaging, removing, or otherwise interfering with certain real property, and deniedthose branches of their cross motion which were pursuant to CPLR 3211 (a) (7) todismiss the first, third, and fourth causes of action.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendants' cross motion which was pursuant to CPLR 3211(a) (7) to dismiss the first cause of action, and substituting therefor a provision grantingthat branch of the cross motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
On a motion pursuant to CPLR 3211 (a) (7), the court must accept the facts asalleged in the complaint as true, accord the plaintiff the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory (seeVermont Mut. Ins. Co. v McCabe & Mack, LLP, 105 AD3d 837, 839[2013]; Sokol v Leader, 74AD3d 1180, 1180-1181 [2010]). "Whether a plaintiff can ultimately establish itsallegations is not part of the calculus" (Vermont Mut. Ins. Co. v McCabe &Mack, LLP, 105 AD3d at 839 [internal quotation marks omitted]). Applying thisstandard to the allegations set forth in the third and fourth causes of action, the thirdcause of action adequately alleged facts sufficient to state a cause of action to set asideconveyances as fraudulent and violative of the Debtor and Creditor Law, and the fourthcause of action adequately alleged facts sufficient to state a cause of action that thedefendants aided and abetted in making the alleged fraudulent conveyances (see DiMauro v United, LLC,122 AD3d 568 [2014]). Accordingly, the Supreme Court properly denied thatbranch of the defendants' cross motion which was pursuant to CPLR 3211 (a) (7) todismiss the third and fourth causes of action.
However, the Supreme Court should have granted that branch of the defendants'cross motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause ofaction, which was to recover damages for conversion of money, since the plaintiffs donot allege "legal ownership or an [*2]immediate right ofpossession to specifically identifiable funds and that the defendant[s] exercised anunauthorized dominion over such funds to the exclusion of the [plaintiffs'] rights" (Whitman Realty Group, Inc. vGalano, 41 AD3d 590, 592 [2007]; see Daub v Future Tech Enter., Inc., 65 AD3d 1004, 1006[2009]).
Contrary to the defendants' contention, the Supreme Court properly grantedpreliminary injunctive relief in this action because the plaintiffs sufficiently established alikelihood of success on the merits on the third and fourth causes of action, irreparableinjury in the absence of injunctive relief, and a balancing of the equities in their favor(see CPLR 6301; Mehulic v New York Downtown Hosp., 113 AD3d 567[2014]; Pantel v Workmen's Circle/Arbetter Ring Branch 281, 289 AD2d 917,918 [2001]). Mastro, J.P., Austin, Cohen and Barros, JJ., concur.