Salvan v Lewis

[*1] Salvan v Lewis 2018 NY Slip Op 51675(U) Decided on November 27, 2018 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 27, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570015/18

Sherwood Allen Salvan, Plaintiff-Appellant,

against

Bryan Lewis, Zoe Warrican, Element Iron Construction, Inc., S/H/I Element Iron Contracting, Inc., and Class Iron Enterprises, Inc., Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (W. Franc Perry, J.), dated November 30, 2016, which denied his motion for summary judgment and granted defendants' cross motion to dismiss the amended complaint, without prejudice.

Per Curiam.

Order (W. Franc Perry, J.), dated November 30, 2016, modified to deny defendants' cross motion and to reinstate the complaint; as modified, order affirmed, without costs.

This action, alleging that defendants Lewis and Warrican fraudulently transferred assets from plaintiff's judgment debtors to other entities, which were allegedly under the exclusive control of Lewis and Warrican (see Debtor and Creditor Law § 273), should not have been dismissed as premature. A creditor has standing to maintain an action against the recipient of a fraudulent conveyance notwithstanding the pendency of postjudgment discovery against the judgment debtors. Furthermore, plaintiff commenced this action pursuant to the dictates of a prior unappealed order of Judge Cohen.

Plaintiff's motion for summary judgment was, however, properly denied. Triable issues of fact are raised as to whether the transfer of money at issue in this case rendered the corporate judgment debtor insolvent and was made without fair consideration (see D'Mel & Assoc. v Athco, Inc., 105 AD3d 451, 453 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 27, 2018