Tufarella v Carthew

Annotate this Case

Download PDF

Tufarella v Carthew 2013 NY Slip Op 30530(U) March 6, 2013 Supreme Court, Suffolk County Docket Number: 37827/2010 Judge: William B. Rebolini Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YOFW I.A.S. PART 7 - SUFFOLK COUNTY PRESENT : WILLIAM B. REBOLINI Justice Johii M. Tufarella, Aida Espinola, as Adiiiinistixtrix of the goods, chattels and credits which were of Anna Lisa Bruno, deceased, Donna Brown, as Adiministratrix of the Estate of Michael S. Bruno, deceased, and Donna Brown, as grandmother and custodian of Barrett Bruno and Baylee Bruno, infants under the age of 14, Plaintiff, Index No.: 37827/2010 Motion Sequence No.: 009; M0T.D Motion Date: 8/29/12 Submitted: 11/28/12 Motion Sequence No.: 010; MD Motion Date: 10/22/12 Submitted: 11/28/12 -againstBeth Carthew, Christopher Carthew, Jeffrey Brett and Natalie Brett, Defendants. King Quality Siding and Windows, Inc. J u dgnient -D ebtor, Motion Sequence No.: 01 1; XMG Motion Date: 11/21/12 Submitted: 11/28/12 Attorney for Plaintiff Jan Ira Gellis, P.C. 137 Fifth Avenue New York, NY 10010 Defendant: Attorney for Defendants Beth Carthew, Christopher Carthew, Jeffrey Brett and Natalie Brett: Ch ri st o phe I. C arthcw 8 1 a Crescent I3cach Road G l c n Cove. N Y 1 1 542 Scott Lockwood, Esq. 1476 Deer Park Avenue, Suite 3 North Babylon, NY 11703 ~~ Clerk of the Court Upoii the lhllowing papers nuinbered 1 to 58 read upon this application for aprotective order, separate motion and cross-niotioii for summaryjudgnient: Notice of Motion and supporting papers, 1 - 1 0 ; 13 - 20; Notice of Cross Motion and supporting papers, 21 - 53; Answering Affidavits and [* 2] Tuf arella, e t al. v. Carthew, et al. Index So.: 3782712010 Page 2 supporting papers, 11 - 12; 54 - 56; Replying Affidavits and supporting papers, 57 - 58; it is ORDERED that this motion (#009) by plaintiff, John M. Tufarella, for an order granting a protecti\ e order is granted only to the extent that within twenty (20) days from the date of this order defendants shall submit proposed written interrogatories to plaintiffs counsel, and upon receipt and review of p laintiffs responses to such interrogatories, defendants may move, if they be so advised, to compel the deposition of a knowledgeable witness and plaintiffs may move, if they be so advised, for a further protective order (see Ceron v Belilovsky, 92 AD3d 714, 938 NYS2d 607 [2d Dept 20121); and it IS further ORDERED that the separate motion (#0 10) by defendants, Beth Carthew, Christopher Carthew, Jeffrey Brett and Natalie Brett, for an order awarding summary judgment in their favor dismissing die coniplainl, against them is denied; and it is further ORDERED that the cross-motion (#011) by plaintiffs for an order granting leave to reargue their prior application for summaryjudgment is granted, and upon such reargument, the cross-motion for an order awarding summaryjudgment in their favor on the first, fourth, seventh, tenth, thirteenth, sixteenth, nineteenth and twenty-second causes of action under Debtor and Creditor Law tj 273-a is granted to the extent indicated herein, and the remaining causes of action are hereby severed and shall otherwise continue against the defendants. Actions were commenced against King Quality Siding & Windows, Inc. (King Quality) arid others by John M. Tufarella on October 14,2004, by Aida Espinola, as administratrix of the goods, chattels and credits which were of Anna Lisa Bmiio, deceased, on May 27,2004, by Donna Brown, as administratrix ofthe estate ofMichael S. Bruno, deceased, on June 3,2004, and by Donna Brown, as grandmother and custodian of Ban-ett Bruno and Baylee Bruno, infants under the age of 14, cai April 14,2004, to recover damages for personal injuries and wrongful death as the result of a motor vehicle accilJent on June 9, 2002. Following a trial in which King Quality was found to be totally responsible for the accident, the claims asserted by plaintiffs were resolved by settlement and confessions of judgment entered into on behalf of the corporation by defendant Beth Carthew, as president of King Quality. Judgment was entered in favor of plaintiff Tufarella on June 3,2009, in f a ~ o of plaintiff Aida Espiiiola in her representative capacity on June 19, 2009, and in favor of r Donna Brown i n her representative capacities on June 17, 2009. It is alleged by plaintiffs that the col-poi-ationhas failed to satisfy the judgments. Plair6ifYs comiiiciiced this action as judgment creditors of King Quality to recover daniagcs for alleged fraudulent coiiveyances of corporate assets. Plaintiffs seek recovery under Debtor and Creditor Law 4 273-d against Natalie Brett and JeffBrett for alleged distribution ofcorporate monies to Nit,ilie Brett \vi thout fair coiisideratioii under the first, seventh, thirteenth and nineteenth causes of action, recovery under Debtor and Creditor Law 5 273 against Natalie Brett and Jeff Brett for allqed distribution of corporate inonies to Natalie Brett which rendered the corporation insolverit umiei the second, eighth, fourteenth and twentieth causes of action, and recovery under Debtor and Creditor Law 4 274 against Natalie Brett and Jeff Brett for alleged fraudulent distribution of [* 3] Tufarella, et al. v. Carthew, et ai. Index No.: .37827/2010 Page 3 corporate monies to Natalie Brett under the third, ninth, fifteenth and twenty-first causes of action. Plaintiffs also seek recovery under Debtor and Creditor Law Q 273-a against Beth Carthew aind Christopheir Carthew for alleged distribution of corporate monies to Beth Carthew without fair consideration under the fourth, tenth, sixteenth and twenty-second causes of action, recovery under Debtor and Creditor Law 9 273 against Beth Carthew and Christopher Carthew for alleged distribution of corporate monies to Beth Carthew which rendered the corporation insolvent under the fifth, eleventh, seventeenth and twenty-third causes of action, and recovery under Debtor and Creditor Law 5 274 against Beth Carthew and Christopher Carthew for alleged fraudulent distribution of corporate monies to Beth Carthew under the sixth, twelfth, eighteenth and twentyfourth causes of action. 711 support of the defendants motion for summary judgment, Jeffrey Brett submitted an affidavit dated September 20, 2012 in which he referred to and corrected his deposition testimony that defendants Beth Carthew and Natalie Brett have been officers of King Quality since 1996. [n his affidavit, Brett set forth the following explanation: The reason Beth and Natalie were placed in that position was because Christopher Carthew and I had legal problems and were no longer going to be directlly affiliated with King Quality Siding and Windows any longer. In addition, in his affidavit dated November 13, 2012 which was submitted in opposition to plaintiffs cross-motion, Jeffi-ey Brett averred that he was not permitted to be directly involved with the home improve men^ business and that he was not able to be directly employed by a company which engaged in financing with banks. Such assertions, however, stand in direct contrast to the statement of facts set forth in the decision and order ofthe Court dated January 12, 2012 (Pastoressa, J.) in the action entitled Bank o i4rirerica, N.A. v King Quality Siding & Windows, Irzc., f Misc3d ~, 2012 NY M i x LEXIS 389 (Sup Ct, Suffolk Co 2012) in which it is stated: A guarantee agreement dated March 6, 2008, signed by Jeff Brett, Natalie Brett, Beth Carthew, and 1615 Sycamore Avenue Corp. was entered into guaranteeing payment in the event of a default by [King Quality Siding & Windows, Inc.] under the line of credit agreement [with Bank of America]. In view of the foregoing, defendants Jeffi-eyBrett, Natalie Brett and Beth Carthew are collaterally estopped from denying the,ir affiliation with King Quality, since suminary judgment was awarded in favor of Bank of America and against them, jointly and severally, upon their continuing and unconditional guaranty dated March 6, X O 8 for amounts loaned to King Quality under a line of credit agreement. ~ Applying the principle offiilszis I I I iiizo,fnlszis 111 owitiihzis, the affidavits of Jeffrey Brett are dct erni 1ncd to be incrcdib IC and without evidentiary merit . Beth Carthew testified at her deposition that she did nothing for King Quality from 2004 until J u l y 2000. Natalie Brett testified that she I S a stay-at-lioine mom most of the time and that in the twelvc-year period prior to her deposition in 201 0 she visited 1615 Sycamore Avenue, maybe three times a year, maybe. She did not know who made decisions for King Quality nor did she Iaiow the identities of the shareholders of the corporation. She did not have an office at King Quality and she nec er worked from home for King Quality. Payroll records authenticated by an employee of Paychex, Inc., indicate that both Beth Carthew and Natalie Brett were paid salaries by Kim; [* 4] Tuf'arella, et al. v. Carthew, et al. Index No.: .37827/2010 Page 4 Quality of $63,000.00 each in 2004. The payroll records also indicate that in 2005 both Beth Carthe- and Natalie Brett were paid salaries by King Quality of $104,000.00 each, and for the first three quai-ki-s through September 30, 2006, each were paid salaries of $1 19,500.00. In addition, Natalie Brett received salary for the last quarter of 2006 in the amount of $58,000.00, plus a salary of S5,000.00 for each of the first four weeks of January 2007, aiid a salary of $6,000.00 for each week thereafter through December 26, 2007. Debtor aiid Creditor Law 5 273-a states as follows: Every conveyance made without fair consideration when the person making it is a defendant in an action for money damages or a judgment in such an action has been docketed against him, is fraudulent as to the plaintiff in that action without regard to the actual intent of the defendant if, after final judgment for the plaintiff, the defendant fails to satisfy the judgment. To the extent that plaintiffs seek an order awarding summary judgment on the first, fourth, seventh, tenth, thirteenth, sixteenth, nineteenth and twenty-second causes of action under Debtor and Creditor Law $ 273-a, plaintiffs have demonstrated that salaries were paid to Natalie Brett and to Beth Carthew during a period when King Quality was a defendant in the motor vehicle action and when judgments in the action were docketed against it, and that no services were provided by either Brett or Carthew in consideration for payment of those salaries. It has been held that where fraudulent conveyances have been established, each transferee who is not a bonu fide purchaser for fkir consideration is liable to the creditor to the extent of the value of the money or property he or she wrongfully received (Farnz Stores, Itic. vSclzool Feeding Corp., 102 AD2d 249,477 NYS2d 374 [2d Dept 19841). I I I viiew of the foregoing, plaintiffs have demonstrated that the aforementioned payments made to Beth Carthew from 2004 through July 3 1,2006 and to Natalie Brett from 2004 through 200'7 by King Quality were fraudulent under Debtor and Creditor Law 5 273-a, thereby establishing their ,ririn~~irfnc.ic entitlement to judgment against defendants Natalie Brett and Beth Carthew as a matter of law ( w e lireisler Borg Flortiiati Getz. Corzstr. Co. v Tower 56, LLC, 58 AD3d 694, 872 NYS2d 469 [2d Dept ZOOS]), and defendants failed to raise a triable issue of fact (see Peterserz v Valerzzano, 285 AD2d 035, 728 NYS2d 192 [2d Dept 20011). The remaining claims are hereby severed arid shall otherwise continue against the defendants. Accordingly, plaintiffs may have judgment againsl Bcth Carthcw for conveyances made from October 4,2004 to December 3 1,2004 in the amount of S23,2 17 39, for conveyaiices in 2005 in the amount of $1 04,000.00, and for conveyances in 2006 through J u l y 3 I , 2006 in the amount of $77,833.33, for a total judgment of $205,050.72, wifh interest fron i June 3,2009, plus costs and disbursements. Plaintiffs also may have judgment against Natalic Brctt for conveyances made from October 4, 2004 to December 3 1, 2004 in the amount of $23,2 1 7 39, for conveyances i n 2005 in the amount of $104,000.00, for coiiveyaiices in 2006 in the m o u n t of' $177,500.00, and for conveyances i n 2007 in the aniount of 308,000.00, for a totill [* 5] Tufarella, et al. v. Carthew, et al. Index No.: :17827/2010 Page 5 judgmcnt of $61 2,717,39, with interest from June 3, 2009, plus costs and disbursements. Entu j Lidginelit accordingly. i Dated: HON. WILLIAM B. REBOLINI, J.S.C. FINAL DISPOSITION X NON-FINAL DISPOSITION

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.