![]() ![]() Section 273 of the Debitor-Creditor Law provides:Įvery conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration. In addition, it is undisputed that the husband was insolvent, as there is no allegation by him in the papers before this court that he had sufficient assets to pay either the liquidated or any unliquidated judgment against him. The plaintiff was the husband's creditor and she had a debt, both in the form of a liquidated judgment for $25,226.72, and in an unliquidated form in unpaid child support from 1993 forward. The transfer of the title from the husband individually to himself and his wife was a conveyance under Section 270 of the New York Debtor-Creditor Law. ![]() The claims under the New York Debtor/Creditor LawĪ brief survey of New York's Debtor-Creditor Law guides this analysis. The husband and wife are entitled to any discrepancies or doubts about the plaintiff's proof, and the plaintiff is entitled to same leeway when assessing the husband and wife's proof. The facts must be viewed in the light most favorable to the party moved against. ![]() If the husband establishes a basis for a grant of summary judgment, then the plaintiff must present evidence that there is a triable issue of fact and vice versa. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004) citing Zuckerman v City of New York, 49 NY2d 557 (1980). The defendants, in seeking to dismiss the claims, must set forth evidence that there is no factual issue and that he and his wife are entitled to a judgment, dismissing this application. The plaintiff must establish that undisputed facts lead to only one conclusion: that the husband and wife violated the Debtor/Creditor Law when he transferred a portion of the real property to her. In this case, because both parties seek summary judgment, they face the same standard. Summary judgment may not be granted unless there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering the competing motions for summary judgment, the black letter standard is found in CPLR 3212. The wife and husband also seek to amend their answer and assert new affirmative defenses. The husband and wife oppose that motion, arguing for summary judgment to dismiss the claims or, in the alternative, a determination that there are factual disputes that preclude summary judgment and require a hearing. In short, when the funds were loaned, the husband retained an interest in the note, and proceeds of the loan - which were sourced in the proceeds from the sale of the real property - could be paid to the husband.īased on these facts, the plaintiff moves for summary judgment on her claims under the New York Debtor/Creditor Law. Importantly, the wife's loan was canonized in a promissory note, in which the Florida LLC agreed to repay the loan to either the wife or the husband's LLC. However, the wife was not the sole payee on the loan: the husband utilized his own limited liability company ("the husband's LLC") and the loan of the wife's share of the house proceeds was payable to either the wife or the husband's LLC. The wife took those proceeds and loaned them to a Florida limit liability company ("the Florida LLC"). Meanwhile, after the sale of the Victor property to a third-party, the wife was given her half share of the net proceeds. Lunn, Esq.įraud can be like magi" target="_blank">Mura v Mura, 133 AD3d 1324 (4th Dept. Mura and Ann Marie Mura, Defendants.įrank A. This opinion is uncorrected and will not be published in the printed Official Reports.ĭavid J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. ![]()
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