320 W. 13th St., LLC v Wolf Shevack, Inc.

320 W. 13th St., LLC v Wolf Shevack, Inc. 2011 NY Slip Op 05416 Decided on June 23, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.



 
 
Decided on June 23, 2011
Tom, J.P., Friedman, Acosta, Renwick, DeGrasse, JJ.

 

5401 603730/07


[*1]320 West 13th Street, LLC,

Plaintiff-Respondent,

-against-


v

Wolf Shevack, Inc., et al.,

Defendants,

Mary Wolf, et al.,

Defendants-Appellants.


 
Bragar Wexler Eagel & Squire P.C., New York (Raymond A. Bragar of counsel), for Mary Wolf, Jay A. Wolf, David J. Wolf, Amalgamated Technologies, Inc. and Optio Software Inc., appellants.
Greenberg Freeman LLP, New York (Michael A. Freeman of counsel), for Trinad Management LLC, Trinad Advisors GP, LLC and Atlantis Equities, Inc., appellants.
Kucker & Bruh, LLP, New York (Marc Jonas Block of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 30, 2010, which, insofar as appealed from, denied defendants-appellants' motions to dismiss the complaint, unanimously modified, on the law, to dismiss the fifth cause of action brought under CPLR 5225(b), and otherwise affirmed, without costs.

Plaintiff alleges that defendant Lawrence Wolf fraudulently transferred assets from plaintiff's judgment debtors to defendant family members and defendant corporations, which were allegedly
under the exclusive control of Wolf and defendant Jay Wolf. The record supports Supreme Court's finding that the complaint states facts sufficient to support the causes of action brought pursuant to New York Debtor and Creditor Law §§ 273-a, 273 and 278. Given the allegations that those transfers rendered the judgment debtors insolvent and were undertaken with the intent to hinder plaintiff's rights as a judgment creditor, the causes of action brought pursuant to New York Debtor and Creditor Law §§ 274 and
276 were also properly stated against all defendants.

The order is modified to the extent indicated because although CPLR 5225(b) authorizes a judgment creditor to commence a special proceeding directly against a third party that receives money or property belonging to a judgment debtor without requiring the creditor to commence a plenary action (see CPLR 5225[b]; Matter of Hotel 71 Mezz Lender, LLC v Rosenblatt, 64 AD3d 431, 432 [2009]), it does not create an independent cause of action in favor a judgment creditor within the context of a
fraudulent conveyance action. [*2]

We have considered appellants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 23, 2011

CLERK