Kantor v Mesibov
Annotate this CaseDecided on October 20, 2005
Supreme Court, Nassau County
Howard Kantor, M.D. and JAMES ALEXANDER, M.D. AS PARTNERS OF COLUMBIA REALTY ASSOCIATES, A NEW YORK PARTNERSHIP, SUING ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED, FOR THE BENEFIT AND IN THE RIGHT OF COLUMBIA REALTY ASSOCIATES, Plaintiffs,
against
William J. Mesibov, M.D., STUART ALTMAN, M.D., ALAN J. NELSON, M.D. and IRIS FELDMAN, EXECUTRIX OF THE ESTATE OF RONALD FELDMAN, M.D. AS MEMBERS OF COLUMBIA REALTY ASSOCIATES, MESIBOV, ALTMAN, M.D. P.C., AS SUCCESSOR TO KANTOR, MESIBOV, ALTMAN, and AMER, M.D.P.C., A PROFESSIONAL NEW YORK CORPORATION, Defendants.
13960/2001
Counsel for Plaintiffs
Phillips, Nizer, Benjamin, Krim & Ballon, Esqs.
600 Old Country Road - Suite 241
Garden City, New York 11530
Counsel for Defendants
(for Mesibov, Mesibov & Altman, M.D.,P.C. and Mesibov Altman, LLP)
Warner & Scheuerman, Esqs.
6 West 18th Street - 10th Floor
New York, New York 10011
Leonard B. Austin, J.
Plaintiffs move to reargue this Court's order dated May 23, 2005, which denied that branch of their prior motion which sought summary judgment on the tenth cause of action of the amended supplemental complaint pursuant to Debtor and Creditor Law § 273-a. The Mesibov Defendants cross-move to reargue said order with regard to the granting of those branches of Plaintiffs' prior motion for summary judgment with regard to the first, second, third and seventh causes of action of the amended supplemental complaint. A full recitation of the facts which underline these applications can be found in this Court's order of May 25, 2005.
A.Plaintiffs' Motion
It is well settled that a motion to reargue is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts, or misapplied the applicable law. Amato v. Lord & Taylor, Inc.,10 AD3d 374, 375 (2nd Dept. 2004); and Krongauz v. Rottenstein, 1 AD3d 486 (2nd Dept. 2004). The remedy is not designed, however, to afford an unsuccessful party successive opportunities to reargue issues previously decided or to
present new or different arguments relating to previously decided issues. McGill v. Goldman, 261 AD2d 593, 594 (2nd Dept. 1999).
Plaintiffs' request to reargue that branch of their prior motion which sought summary judgment against Defendants on the tenth cause of action of the amended supplemental complaint is predicated on the erroneous assertion that this Court misconstrued the law by improperly imposing the element of insolvency on Plaintiffs' claim made pursuant to Debtor and Creditor Law § 273-a. While Plaintiffs claim entitlement to summary judgment on their fraudulent conveyance claim the only sections of the Debtor & Creditor Law specifically mentioned in the amended supplemental complaint are §276 (which deals with conveyances made with intent to defraud) and §278 (under which a creditor may recover money damages against a party or parties who participate in fraudulent transfer and are either transferees of assets or beneficiaries of the conveyance).
Paragraph 101 of the amended supplemental complaint alleges that the
assets of Mesibov Altman M.D.P.C. and its predecessor, Kantor Mesibov Altman and Amer M.D.P.C. were transferred to and made at a time was [sic] Mesibov Altman M.D.P.C. would be rendered insolvent and or incapable of satisfying the obligations contained in the demand [*2]promissory notes on which this Court Ordered summary judgment on behalf of the Plaintiffs on September 9, 2002.
In paragraph 102, Plaintiffs allege:
[T]he transfer of assets and property * * * was made without fair consideration and with an actual intent to hinder and delay Plaintiffs' recovery on the note obligations of Mesibov Altman M.D.P.C., the predecessor of Mesibov Altman LLP.
The basis of the Court's denial of summary judgment on Plaintiffs' fraudulent conveyance claim was the lack of documentary evidence sufficient to establish the elements necessary under either Debtor and Creditor Law § 273 insolvency and lack of fair consideration; or § 273-a lack of fair consideration. As noted in the May 23, 2005 Order, whether the conveyance of the assets and property of Mesibov Altman M.D.P.C. to Mesibov Altman LLP rendered the debtor insolvent and/or whether fair consideration was paid, are questions of fact for the trier of fact to resolve. Although Plaintiffs are correct in arguing that it is not necessary, under § 273-a, to establish that a judgment debtor is rendered insolvent as a result of a purported fraudulent conveyance, it must, however, be established, even under § 273-a, that the conveyance at issue was made without fair consideration. Mega Personal Lines, Inc. v. Halton, 9 AD3d 553, 555 (3rd Dept. 2004). The burden of proof is on the creditor seeking to set aside a conveyance as fraudulent to establish that the debtor's conveyance was made without fair consideration. Century 21 Bigman Realty, Inc. v. Horton, 230 AD2d 761 (2nd Dept. 1996); and Gelbard v. Esses, 96 AD2d 573 (2nd Dept. 1983).
While there is no real dispute that Mesibov Altman M.D.P.C. was a defendant in an action for money damages at the time the transfer of assets to Mesibov Altman LLP took place, and that the judgment entered against Mesibov Altman M.D.P.C. in the principal sum of $200,981.48 plus interest has not been satisfied under the circumstances of this case, a question of fact exists as to whether fair consideration was given for the conveyance at issue. Plaintiffs' submissions in support of reargument fail to establish the absence of fair consideration as a matter of law. In fact, Plaintiffs have failed to submit any evidence to buttress the claimed lack of consideration for the alleged transfer of assets herein.
In considering a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party who must be afforded the benefit of every reasonable inference. Negri v. Stop and Shop Inc., 65 NY2d 625 (1985). To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. Forrest v. Jewish Guild for the Blind, 3 NY2d 295, 314 (2004). Even the color of a triable issue of fact forecloses the remedy. If there is doubt as to the existence of a triable issue, or where a material issue of fact is even arguable, summary judgment must be denied. In re Cuttitto Family Trust, 10 AD3d 656, 657 (2nd Dept. 2004). Plaintiffs' motion to reargue must be denied given the existence of a factual issue with respect to consideration. Plaintiffs have failed to demonstrate that, in reaching its decision, the Court misapprehended the relevant facts or misapplied the law.
B.Defendants' Cross-Motion
By way of cross-motion, the Mesibov Defendants seek to reargue that branch of this Court's order of May 23, 2005 which granted Plaintiffs' motion for summary judgment on the [*3]breach of fiduciary duty and indemnification claims against Defendant William J. Mesibov, M.D. ("Mesibov") on the first, second, third and seventh causes of action of the amended supplemental complaint.
Notwithstanding the prohibition against the payment of a salary to a partner for services rendered to the partnership (Partnership Agreement ¶ 5), Mesibov contends that he is entitled to compensation for services he rendered pursuant to his Management Agreement with Columbia Realty Associates ("Columbia"). Although Schedule A of the Partnership Agreement states that "all matters including but not limited to architectural changes, distribution of funds among partners, borrowing for the partnership, etc. shall be by majority vote," this record is devoid of any showing that there was, in fact, an express agreement, by a vote of a majority of the partners, that Mesibov was to receive a $2,000 monthly management fee. In his own deposition testimony, Mesibov states that there are no written minutes of any meeting at which a vote was taken, or any written communication between the Columbia co-partners and him, regarding the question of whether he was to receive such a fee.
The May 23, 2005 order does not hold, as movants erroneously contend, that Mesibov was not entitled to compensation because the Management Agreement was signed by only four of the six partners. Nor did the Court overlook the majority rule clause which permits the partnership to enter into contracts on the basis of a vote of the majority. Further, the Court made no finding that the signatures on the Management Agreement were forged. Rather, the Court indicated that the Columbia partners,
Howard Kantor, James Alexander and Stuart Altman did not recall having ever seen the Management Agreement.
The profits of a partnership business generally constitute payment for the services rendered and partners must look to the appreciation of their interests in the endeavor for their financial reward. A partner, therefore, is not entitled to remuneration for acting in the partnership business except as provided by an express agreement. Posner v. Posner, 280 AD2d 318, 319 (1st Dept. 2001); Levy v. Keslow, 235 AD2d 293, 294 (1st Dept. 1997); and Partnership Law §40. Mesibov breached his fiduciary duty to his co-partners by using and obtaining the benefit of partnership assets for himself without the express consent of his co-partners. The record clearly establishes that Mesibov engaged in self-dealing by placing his personal interests in conflict with those of the partnership thereby violating his fiduciary obligations to his partners.
In view of Mesibov's misconduct (i.e. failure to remit rent from M.D.P.C. to Columbia for over fifteen months and default in payment of Columbia's mortgage to Chase Bank), self-dealing and disloyalty to his Columbia partners (unilateral withdrawal of cash from Columbia and concealment of same), the contention, advanced now for the first time, that the deficiency arising from the foreclosure of the Underhill Road property was the product of market forces beyond his control, and not from any wrongful acts on his part, has no basis or support in the record and is untenable.
After careful review of the contentions advanced by Mesibov in support of reargument, and in the absence of any basis to conclude that the Court either overlooked or misapprehended relevant facts, or misapplied controlling principles of law in granting Plaintiffs' prior motion for summary judgment on the first, second, third and seventh causes of action of the supplemental amended complaint, Defendants' cross- motion to reargue must be denied.
Accordingly, it is, [*4]
ORDERED, that Plaintiffs' motion for reargument is denied; and it is further,
ORDERED, that Defendants' cross-motion for reargument is denied.
This constitutes the decision and Order of the Court.
Dated: Mineola, NY _____________________________
October 20, 2005 Hon. LEONARD B. AUSTIN, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
