Cantor Fitzgerald & Co. v 8AN Capital Partners Master Fund L.P.
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Cantor Fitzgerald & Co. v 8AN Capital Partners Master Fund L.P. 2014 NY Slip Op 33967(U) December 19, 2014 Supreme Court, New York County Docket Number: 156559/14 Judge: Melvin L. Schweitzer Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/16/2015 02:22 PM 1] NYSCEF DOC. NO. 15 INDEX NO. 156559/2014 RECEIVED NYSCEF: 01/16/2015 SUPREME COURT OF THE STATE OF NEWYO~K NEW YORK COUNTY , " I PRESENT: PARTjL Justice ! I INDEX NO. /~(,S'£1I/J" I MOTION DAT, _ _ __ •V· B AW GAf1TAL PM:nJ~ HA$T& FwNI> r... P. t bl I ~N MOTION SEQ1,·NO. 0 ~f CPllTAL. fA«.~, L-T'D. ANb t'HIU.tP e!y-TA~ The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits - I No(s). - - - - I No(s). - - - - - - - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this · w C.> ;::: motion~ ~ t:J..e_ ~dl-'4e..,,rA~ t).4 .. ~.,,l.4~-4e~'4 D~tJt~ t:b ~~a.:L:k~ ~~I~ CJr~. ·: rn :::> ..., g c w 0::: 0::: w LL. w 0::: •• >- ..J !!. ..J z :::> 0 u.. rn I- <( C.> w w 0::: 5; C> wz 0::: - rn ;:: -0 w ..J rn ..J <~ ~ w z :c 0 I- 0 0 i= :IE 0::: LL. Dated: ~~ If, "2.o/4 -..WI L.1JCMlllBnlllt 1. CHECK ONE: ..................................................................... 0 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER D DO NOT POST ~-Fl.AL DISPO CASE DISPOSED 0 0 GRANTED IN . DENIED 0 PA~T 0 ION OTHER SUBMITfRDER D FIDUCIARY APPOINTMENT I D REFERENCE [* 2] ·•. [* 3] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 45 ------------------------------------------------------------------------x CANTOR FITZGERALD & CO., Index No. 156559/14 Plaintiff, DECISION AND ORDER -against8AN CAPITAL PARTNERS MASTER FUND L.P., 8AN CAPITAL PARTNERS, LTD. and PHILIP EYTAN, Motion Sequence No. 001 Defendants. ------------------------------------------------------------------------x MELVIN L. SCHWEITZER, J.: This action involves an alleged fraudulent transfer of assets by a financial institution during the course of a litigation against the financial institution. An individual defendant, who is alleged to have controlled both the transferor and transferee, has moved to dismiss the action. Facts In August 2012, plaintiff commenced an action against a master fund for failure to settle an agreed-upon securities trade, seeking in excess of $2,500,000. During the litigation, which ended in an award of monetary relief to plaintiff, the master fund transferred approximately $500,000 and several million shares of stock to an account of an investor in Switzerland. The investor had entered into an investment management agreement with the master fund, with a limited liability company acting as investment manager to both entities. The individual defendant here served as managing member of the master fund, director of the investor, and an officer of the investment manager. It is alleged that under the investment management agreement assets could be transferred between the master fund and investor at the sole direction of the [* 4] investment manager. Thus, the individual defendant who controlled the master fund and the investor also had the power to transfer assets between them. Discussion The individual defendant, who is alleged to have been responsible for the transfer referred to above, asserts that the Debtor and Creditor law does not provide for a remedy against non-transferees. However, where the party is alleged to have dominion and control over the transferred assets and also is alleged to have benefitted in any way from the transfer, the Debtor and Creditor law is applicable. See FDIC v Porco, 75 NY2d 840 (1990). That is exactly what is alleged against individual defendant. Thus, his motion to dismiss is denied. Accordingly, it is ORDERED that defendants' motion to dismiss is denied. Dated: December Jf, 2014 ENTER: ~ J.S.C. MELVIN L. SCHWEITZEf~ 2
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