Matter of 8430985 Can., Inc. v Frydman

Matter of 8430985 Can., Inc. v Frydman 2020 NY Slip Op 06337 Decided on November 05, 2020 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 and Entered: November 05, 2020
Before: Acosta, P.J., Singh, Kennedy, Shulman, JJ.
Index No. 154932/16 Appeal No. 12293N Case No. 2020-01425

[*1]In the Matter of 8430985 Canada, Inc., Petitioner-Respondent,

v

Jacob Frydman et al., Respondents-Appellants.

Wrobel Markham LLP, New York (David C. Wrobel of counsel), for appellants.

The Ryan Law Group LLP, Brooklyn (Andrew J. Ryan of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered June 25, 2019, which, to the extent appealed, denied respondents' cross motion to dismiss the amended petition, unanimously reversed, on the law, with costs, to grant the cross motion and dismiss the petition. The Clerk is directed to enter judgment accordingly.

Respondents' documentary evidence, consisting of a series of agreements and modifications to the agreements, conclusively refuted petitioner's central contention, that certain funds transferred to respondents were property of the judgment debtor (see Goshen v Mutual Life Ins. Co. of N.Y. , 98 NY2d 314, 326 [2002]).

Given that this was an essential element of all of petitioner's claims, the petition should have been dismissed.

Petitioner is incorrect that the motion was barred by the single motion rule, because respondents had moved to dismiss the original petition. The rule is not

implicated where, as here, the amendment introduced substantial new material (Held v Kaufman, 91 NY2d 425, 430, [1998]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 5, 2020