Fiore v DeGina

Fiore v DeGina 2019 NY Slip Op 07052 Decided on October 2, 2019 Appellate Division, Second 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 October 2, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JEFFREY A. COHEN
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2017-09089
2017-09090
(Index No. 51133/15)

[*1]Andrew J. Fiore, et al., appellants,

v

Eva Rem DeGina, defendant, Christopher R. Cuomo, etc., respondent. (Appeal No. 1)



Andrew J. Fiore, et al., appellants,

v

Eva Rem DeGina, respondent, et al., defendant. (Appeal No. 2)

Michael V. Caruso, P.C., Brewster, NY, for appellants.

Frank A. Catalina , Peekskill, NY, for respondent Eva Rem DeGina.

DECISION & ORDER

In an action to recover on promissory notes and to set aside an alleged fraudulent conveyance, the plaintiffs appeal from (1) a judgment of the Supreme Court, Dutchess County (Christine A. Sproat, J.), dated July 13, 2017, and (2) an amended judgment of the same court dated August 3, 2017. The judgment, after a nonjury trial, is in favor of the plaintiff Andrew J. Fiore and against the estate of William P. DeGina in the principal sum of only $35,000, and is in favor of the plaintiff Peter Lomonte and against the estate of William P. DeGina in the principal sum of only $25,000. The amended judgment, upon the granting of the motion of the defendant Eva Rem DeGina, in effect, pursuant to CPLR 4401, made at the close of the plaintiffs' case, for judgment as a matter of law dismissing the complaint insofar as asserted against her, is in favor of the defendant Eva Rem DeGina and against the plaintiffs dismissing the complaint insofar as asserted against her.

ORDERED that the judgment is affirmed, without costs or disbursements; and it is further;

ORDERED that the amended judgment is affirmed, with costs.

In July 2015, the plaintiffs, Andrew J. Fiore and Peter Lomonte, commenced this action against the defendant Eva Rem DeGina and her father-in-law, William P. DeGina, to recover on a series of promissory notes totaling the principal sum of $156,177.90. The notes allegedly evidenced loans made over a seven-year period by each of the plaintiffs to William, and his wife and son. William's wife and son both died prior to the commencement of this action. The plaintiffs also sought to set aside, as a fraudulent conveyance under the Debtor and Creditor Law, a transfer of certain real property from William to his son, who was married to Eva. Eva subsequently inherited the property upon her husband's death. William died during the pendency of this action, and the defendant Christopher R. Cuomo, as Acting Public Administrator of Westchester County, was [*2]substituted in place of William.

Following a nonjury trial, the Supreme Court entered a judgment in favor of Fiore and against William's estate in the principal sum of $35,000, and in favor of Lomonte and against William's estate in the principal sum of $25,000. The court also granted Eva's motion, in effect, pursuant to CPLR 4401, made at the close of the plaintiffs' case, for judgment as a matter of law dismissing the complaint insofar as asserted against her, and an amended judgment was entered accordingly. The plaintiffs appeal from the judgment and the amended judgment.

" A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'" (Clarke v Phillips, 112 AD3d 872, 874, quoting Szczerbiak v Pilat, 90 NY2d 553, 556). " In considering the motion, the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'" (Clarke v Phillips, 112 AD3d at 874, quoting Miller v Bah, 74 AD3d 761, 763; see Szczerbiak v Pilat, 90 NY2d at 556). Here, we agree with the Supreme Court's determination granting Eva's motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against her. Considering the evidence in the light most favorable to the plaintiffs (see Szczerbiak v Pilat, 90 NY2d at 556; Clarke v Phillips, 112 AD3d at 874; Miller v Bah, 74 AD3d at 763), there was no rational process by which the court, as the trier of fact, could have concluded that the transfer of the subject property, now owned by Eva, from William to his son, was a fraudulent conveyance pursuant to Debtor and Creditor Law § 273.

Furthermore, in reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and a judgment may be rendered if warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; BNG Props., LLC v Sanborn, 153 AD3d 1221, 1222; Mad Den, Inc. v Vaccarino, 151 AD3d 712, 714; Ganai v 6910 Fort Hamilton Parkway Corp., 149 AD3d 914, 916). Here, the Supreme Court's determination to award the plaintiffs the total principal sum of $60,000 rested largely on its assessment of the evidence before it and the credibility of the witnesses. Contrary to the plaintiffs' contention, the court's findings were warranted by the facts and will not be disturbed.

The plaintiffs' remaining contentions are without merit.

Accordingly, we affirm the amended judgment and the judgment.

DILLON, J.P., COHEN, BARROS and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court