| Cantor Fitzgerald & Co. v 8an Capital Partners MasterFund, L.P. |
| 2015 NY Slip Op 07046 [132 AD3d 402] |
| October 1, 2015 |
| Appellate Division, First Department |
[*1]
| Cantor Fitzgerald & Co.,Respondent, v 8an Capital Partners Master Fund, L.P., et al., Defendants, andPhilip Eytan, Appellant. |
David Bolton, P.C., Garden City (David Bolton of counsel), for appellant.
Cantor Fitzgerald & Co., New York (Michael S. Popok of counsel), forrespondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), enteredJanuary 16, 2015, which denied defendant Philip Eytan's motion to dismiss the complaintas against him, unanimously reversed, on the law, without costs, the motion granted, andthe complaint dismissed. The Clerk is directed to enter judgment accordingly.
The motion court should have granted defendant's motion. The complaint alleges thatdefendant knew of and participated in the alleged fraudulent transfer of assets but fails toallege that he is the transferee, and further fails to allege, in anything other thanconclusory fashion, that he benefited from the transfer, as required to state a cause ofaction for fraudulent conveyance (Debtor and Creditor Law §§ 273,276; Federal Deposit Ins. Corp. v Porco, 75 NY2d 840, 842 [1990]; Symbax,Inc. v Bingaman, 219 AD2d 552, 553-554 [1st Dept 1995]). Moreover, whiledefendant is an officer of both defendant transferor and transferee corporations, "receiptof a salary from the transferee corporation as an officer of the corporation is notsufficient to render the officer a transferee or beneficiary of the transfer" (D'Mel & Assoc. v Athco,Inc., 105 AD3d 451, 452-453 [1st Dept 2013] [internal quotation marks andcitation omitted]). As there are no other nonconclusory allegations sufficient to holddefendant individually liable for the fraudulent transfer, the complaint should bedismissed as against him (seeRiback v Margulis, 43 AD3d 1023, 1023 [2d Dept 2007]).Concur—Friedman, J.P., Andrias, Saxe, Richter and Gische, JJ.