Matter of Kopicel v Schnaier

Matter of Kopicel v Schnaier 2016 NY Slip Op 08608 Decided on December 22, 2016 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 December 22, 2016
Friedman, J.P., Moskowitz, Webber, Kahn, Gesmer, JJ.
652507/15 2538A 2538

[*1] In re Chaim Kopicel, Petitioner-Appellant,

v

Joseph Schnaier, Respondent, Mark Arzoomanian, et al., Respondents-Respondents.

Law Office of Jeffrey Fleischmann, PC, New York (Jeffrey Fleischmann of counsel), for appellant.

Sichenzia Ross Friedman Ference LLP, New York (Sameer Rastogi of counsel), for respondents.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered November 4, 2015, which, inter alia, denied in part the petition pursuant to Debtor and Creditor Law § 274, unanimously modified, on the law, to award petitioner prejudgment interest under CPLR 5001, and otherwise affirmed, without costs. Order, same court and Justice, entered April 19, 2016, which granted respondents' motion to renew and, upon renewal, vacated the November 4, 2015 order, unanimously reversed, on the law and in the exercise of discretion, without costs, and the prior order reinstated as modified.

Renewal should have been denied where, as here, respondents offered no reasonable justification for failing to proffer the "newly discovered" evidence on the original order to show cause, when that evidence had been in their possession for years (see Queens Unit Venture, LLC v Tyson Ct. Owners Corp., 111 AD3d 552, 552—553 [1st Dept 2013]). It was further an abuse of discretion to allow renewal where respondents used it as an opportunity to change legal theories, after they had the court's initial decision (Foley v Roche, 68 AD2d 558, 568 [1st Dept 1979]). Even had the court properly considered the unsworn, unsigned net worth statement of the debtor, prepared a year before the transaction at issue, it would have been insufficient to rebut the presumption of insolvency (cf. Matter of Shelly v Doe, 249 AD2d 756, 757 [3rd Dept 1998]).

With regard to the first order appealed from, the IAS court was correct that the petition did not state a claim under Debtor and Creditor Law § 274. There was no showing that the challenged transaction rendered any business of the debtor under-capitalized, or any allegation of a subsequent transaction for which debtor had too little capital (Debtor and Creditor Law § 274; see In re Chin, 492 BR 117, 128-129 [Bankr ED NY 2013]).

However, the court should have awarded prejudgment interest on petitioner's claim for fraudulent conveyance under Debtor and

Creditor Law § 273 (see CDR Creances S.A. v Cohen, 104 AD3d 17, 30 (1st Dept 2012), affd as modified sub nom. CDR Creances S.A.S. v Cohen, 23 NY3d 307 (2014).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2016

CLERK