McMahan v Law Off. of Yonatan S. Levoritz, P.C.

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McMahan v Law Off. of Yonatan S. Levoritz, P.C. 2015 NY Slip Op 32988(U) December 31, 2015 Supreme Court, Westchester County Docket Number: Index No. 54904/2015 Judge: Sam D. Walker 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: 1] WESTCHESTER COUNTY CLERK 01/13/2016 11:11 AM NYSCEF DOC. NO. 125 INDEX NO. 54904/2015 RECEIVED NYSCEF: 01/11/2016 To commence commence the statutory statutory time time for appeals appeals as of right right (CPLR (CPLR 5513[a]), 5513[a]), you are i advised copy advised to serve serve a copy of this this order, order, with notice notice. of entry, upon upon all parties parties. SUPREME COURT THE STATE STATE OF NEW YORK SUPREME COURT OF THE NEW YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER ., PRESENT: WALKER, J.S.C. J.S.C. PRESENT: HON. SAM D. WALKER, ___________________________ ~ ------------------------x ------------------------------------------------------------------------------x DAVID DAVID BRUCE BRUCE McMAHAN McMAHAN Index 54904/2015 Index No. 54904/2015 Decision Order Decision and Order Seq.# Seq. # 1&2 Plaintiff, Plaintiff, -against-against- LAW YONATAN S. LEVORITZ, LAW OFFICE OFFICE OF YONATAN LEVORITZ, P.C. AND ELENA AND ELENA MCMAHAN, MCMAHAN, 'iI Defendants. Defendants. -------------------------,---------------------------------------------------x --------------------------,---------------------------------------------------x The were read on Defendant seeking The following following papers papers were Defendant Elena Elena McMahan's McMahan's motion motion seeking dismissal of Plaintiff'.s Plaintiff's.1, causes pursuant to CPLR causes of action action pursuant CPLR 5015, 5015, CPLR CPLR 3016, 3016, Judiciary Judiciary Law dismissal § defendant Law Office Office of Yonatan Yonatan S. Levoritz, ~ 475, and CPLR CPLR 3211 (a)(7); and on the defendant Levoritz, P.C.'s ("Levoritz") ("Levoritz") motion motion seeking Plaintiff's causes pursuanttoto CPLR P.C.'s seeking dismissal dismissal of Plaintiff's causes of action action pursuant CPLR 3211 (a)(2), CPLR CPLR 5015(a), CPLR 3016, Judiciary Law ~ 475, CPLR 5015(a), CPLR Judiciary Law§ CPLR 3211 (a)(7), (a)(7), CPLR CPLR 3211(a)(1), summary pursuant to CPLR 3211(a)(1), summary judgment judgment pursuant CPLR 3212, 3212, and cancelling cancelling and discharging discharging notice of pendency pendency dated dated March March 30, 2015, pursuant to CPLR the notice 2015, pursuant CPLR 6501,6513 6501,6513 and 6514: 6514: PAPERS PAPERS Amended Notice Notice of Motion/Affidavit(2)/Affirmation/Exhibits Motion/Affidavit(2)/Affirmation/Exhibits A-FF Amended A-FF Affirmation in Opposition/Exhibit Opposition/Exhibit A Affirmation Notice of Cross-Motion/Affirmation/Exhibits Cross-Motion/Affirmation/Exhibits A-G Notice A-G Affirmation Affirmation in Opposition Opposition to Cross-Motion/Exhibits Cross-Motion/Exhibits A-B A-B Reply Affirmation/Reply Affirmation/Reply Affidavit Affidavit Reply NUMBERED NUMBERED 1-36 37-38 37-38 39-47 39-47 48-50 48-50 51-52 51-52 Plaintiff and Defendant Defendant were were married married on July July 27, 27,2002 ,two children children during during Plaintiff 2002 and had .two I [* 2] commenced a course of the marriage. marriage. On or about about January January 10, 2005, 2005, Defendant Defendant commenced the course : action by the divorce divorce action. action. Subsequent Subsequent to such filing, parties resolved resolved the divorce action the parties filing, the divorce .1 .1 entering into a Stipuiation Stipuiation of Settlement Settlement As To Financial Financial Issues Issues Post-Nuptial Post-Nuptial Property Property entering The Court. The the Court. Settlement Agreem~nt Agreem~nt ("the ("the agreement"), agreement"), which which was "So Ordered" Ordered" by the Settlement June 19, divorce action action was discontinued, pursuant pursuant to the agreement agreement and then then restored restored on June was discontinued, divorce agreement. the agreement. 2007, upon Plaintiff's Plaintiff's application application to enforce enforce the custody custody provisions provisions of the 2007, against action") against action ('the Plaintiff commenced commenced an action ('the contract contract action") 2007, Plaintiff 2,! 2007, August 2,' On August costs and Defendant Elena Elena McMahan, McMahan, seeking seeking money money damages, damages, attorney's attorney's fees, fees, costs Defendant of the disbursements due due to an alleged alleged material material breach breach of the confidentiality confidentiality provisions provisions of disbursements agreement, which states in pertinent pertinent part that: which states agreement, protect The parties respect respect each each other's other's rights rights to privacy privacy and agree agree to protect The parties their marriage concerning their each unwanted publicity publicity concerning marriage and adverse or unwanted other from adverse each otherfrom their respective respective personal, personal, financial financial and business business affairs affairs .... their Without obtaining obtaining the other other party's party's written written consent consent in advance, advance, neither neither Without diary, any published, be to party shall directly or indirectly publish, cause published, any diary, cause or indirectly publish, party shall directly memoir, letter, story, photograph, photograph, interview, interview, article, article, essay, essay, account account or memoir, fictionalized or not, whether fictionalized description or depiction depiction of any any kind whatsoever, whatsoever, whether description concerning the parties' parties' marriage marriage or any other other aspect aspect of their their respective respective concerning personal, business business or financial affairs, or assist assist or provide provide information information to financial affairs, personal, such of any dissemination of others connection with the publication or dissemination any such the publication others in connection material or excerpts excerpts thereof thereof .... material Treated She's Treated Plaintiff alleges alleges thatin thatin June June 2007, 2007, an article, article, entitled entitled "Daddy's "Daddy's Dog: Saying Saying She's Plaintiff McMahan No Better Better Than Than a Stray Stray Cur, the Fifth Wife Wife of 'Daddy's 'Daddy's Girl' Millionaire Millionaire Bruce Bruce McMahan Plaintiff and Breaks Her Her Silence." containing containing information information about about the relationship relationship between between Plaintiff Breaks Voice and Defendant and his business business and financial financial affairs, affairs, was published published by The The Village Village Voice Defendant that Plaintiff Plaintiff caused caused such story story to be published. published. That That action action is still pending pending before before this that Court. 2 [* 3] children the children where the around '~ay ;~ay 2009, 2009, the McMahans McMahans were were in dispute dispute as to where In or around II 11 Ii Court, this Court, before this action before would reside. On July July 20, 20,2009, during a hearing hearing on the divorce divorce action 2009, during would reside. ·I-I would pay Ms. McMahan counsel for the parties parties stipulated stipulated in open open court, that that Plaintiff Plaintiff would McMahan up counsel ,I ,1 " granted a would be granted turn would $1,000,000.00 for;the for';the purchase purchase of a home home and that that Plaintiff Plaintiff in turn to $1,000,000.00 i judgment for any judgment lien on such home,!in the amount amount of the purchase purchase price, price, as security security for I 2009, Ms. October 2009, around October e"ntered against against Ms!: Ms~:McMahan contract action. action. In or around McMahan in the contract e·ntered F F of price of upon price agreed upon for an agreed McMahan entered entered into a contract contract to purchase purchase the premises for the premises McMahan ! Court then This Court 2009. This $950,000.00 and sh'e acquired acquired title to the property property on October October 19, 2009. $950,000.00 ~l~i amount and the amount submit a lien in the so-ordered an agreement agreement directing directing Plaintiff's Plaintiff's counsel counsel to submit so-ordered :l '! ;l:l contract the contract of the conclusion of the conclusion $950,000.06 to attach attach to the premises premises pending pending the sum of $950,000.00 :i:~ action. action. Plaintiff alleg~s alleg~s that that despite despite this Court's Court's directive directive and Order, Order, Ms. McMahan McMahan refused refused Plaintiff i I!., -, imposition of the imposition effectuate the documents or otherwise otherwise cooperate cooperate with Plaintiff Plaintiff to effectuate to sign any documents i' ::i1 such of such result of that as a result favor of Plai~tiff Plai~tiff and against against Ms. McMahan. McMahan. Plaintiff Plaintiff alleges alleges that a lien in favor 'l'i against of pendency failure on the part of Ms. McMahan, McMahan, Plaintiff's Plaintiff's counsel counsel filed a notice notice of pendency against failure " iil 2009. October 23, 2009. the premises premises in connection conr'ection with the 2007 2007 contract contract action, action, on October -~ ' contract the contract judgment in the 2015, Plaiptiff Plaiptiff filed a motion motion seeking seeking partial partial summary summary judgment In 2015, .j.j averred which she averred affidavit, in which action. In oppositio~ OPPoSitiO~to such motion, motion, Ms. McMahan McMahan filed filed an affidavit, to such action. that the the property that the house house bel~nged beldnged to her attorney, attorney, who has a lien on the property and that that :1 already on the way. Plaintiff was already process for for transferring transferting the property property over over to her attorney, attorney, was Plaintiff process ! i! subsequently learne,d learn~d that that on or about about August August 21, 21,2013, Levoritz had commenced commenced a Kings 2013, Levoritz subsequently :I agreement between County action action against agai~st Ms. McMahan McMahan for for breach breach of a 2013 2013 retainer retainer agreement between County !!il i':: show order to show filed an order then filed Levortiz and Ms. McMahan. McMahan. On September September 19, 19,2013, Levoritz then 2013, Levoritz Levortiz i ~ ;( ; 3 [* 4] cause judgment against against Ms. McMahan amount of cause in that that action, action, seeking seeking a money money judgment McMahan in the amount $725,000.00 such motion, submitted an affidvit affidvit signed signed by Ms. McMahan McMahan $725,000.00 and in support support of such motion, submitted acknowledging authorizing the entry entry of judgment judgment against against her acknowledging certain certain debt debt to Levoritz Levoritz and authorizing i in the amount favor of Levoritz. September 20, 2013, 2013, the parties parties amount of $725,000.00 $725,000.00 in favor Levoritz. On September appeared before the Kings County Justice, Justice, and upon hearing hearing from from the the parties, parties, that that court court appeared before Kings County signed show cause cause and issued issued a Short Short Form Order Order granting granting the relief relief signed Levoritz's Levoritz's order order to show requested, awarding a money judgment against against Ms. McMahan amount of requested, awarding money judgment McMahan in the amount I . $725,000.00 and in l connection judgment, Levortiz was further further awarded awarded a $725,000.00 connection with such judgment, Levortiz was .. security equitable ownership ownership of her property security interest interest in Ms. McMahan's McMahan's equitable property located located at 8 Belle Boulevard, Rye Brook, Brook, NY, and could immediately immediately be recorded recorded as a lien on that Fair Boulevard, that property. that the judgment judgment and lien obtained obtained by Defendant property. Plaintiff Plaintiff contends contends that Defendant Levoritz Levoritz i against transaction, designed designed to render judgment against Ms. McMahan, McMahan, is a sham sham transaction, render Ms. McMahan McMahan judgment proof and that that they they must must be declared Plaintiff. proof declared void, as to Plaintiff. Plaintiff commenced this action action by filing a summons summons and complaint complaint on March Plaintiff then then commenced 30,2015, alleging three 30, 2015, alleging three causes causes of action action and seeking seeking to declare declare void, the judgment judgment and I lien filed against vacate such; such; attorney's attorney's fees, fees, costs costs and expenses expenses against the premises premises and vacate incurred in connection connection with the action; imposition of an equitable incurred action; and the imposition equitable lien against against the premises in favor Plaintiff. Defendants Defendants now file the instant instant motions motions seeking seeking dismissal dismissal of premises favor of Plaintiff. Plaintiff's causes causes of,action. of,action. Plaintiff's Cancellation Cancellation and Discharge Discharge of Notice Notice of Pendency Pendency CPLR 6501 states states in pertinent pertinent part part that, that, "[a] notice notice of of pendency pendency may may be filed filed in any CPLR action in a court court of of the the state state of of the the United United States States in which which the the judgment demanded would would judgment demanded action •• I affect the the title title to, or, or the possession, possession, use of enjoyment enjoyment of, real property property .... ...."" McKinney's McKinney's affect 4 ::, [* 5] effective for be effective "shall be ndency "shall tice of pe CPLR 6501. Further, CP CPLR 6513, states that notice pendency for the no t the tha tes sta , 13 65 LR er, CPLR 6501. Furth CPLR 6516(c) and CPLR 6513 and CP LR 6513 Kinney's CPLR a period ofthreeyearsrs from the date offiling ..."" Mc McKinney's 6516(c) filing ... of te da the m fro yea ee thr a period of previously filed a previously which a in which ion in states that, "a notice of of pe pendency mayy no nott be filed anyy act action filed filed in an ma cy en nd states that, "a notice vacated or had or vacated celled or en can notice of pendency aff affecting the sam samee pro property been cancelled or had perty had be the ing ect cy notice of penden JJ ). 16(c ). LR 65 Kinney's CP expired or become ineffective. McKinney's CPLR 6516(c e. Mc expired or become ineffectiv 30, 2015, March 30, on March Plaintiff on filed by Plaintiff cy Levoritz argues that the notice of pendency filed 2015, en nd pe of tice no the t Levoritz argues tha a prior notice revive a to revive seeks to tha t itit seeks unds that should be cancelled an and discharged on the grounds prior notice gro the d rge cha dis d should be cancelled which upon action, which contract action, 2007 contract the 2007 intiff in the of pendency filed on Oc October 23,2009, Plaintiff upon Pla by , 09 20 23, er tob on d of pendency file given the lapse that, given ues that, voritz arg 12. Le information and belief, expired on Oc October 2012. Levoritz argues the lapse tober 23, 20 on d ire exp , lief be d an n informatio empt by the same an att , an of law tter of ma a as cy, and nullification of of the prior notice of pendency, matter law, attempt by the same en nd pe tice no or and nullification the pri one ha lf years and one two and ligation ove tential ob plaintiff to revive itit to secure the samee po potential obligation overr two half years sam the ure sec to pla int iff to revive roper. later, improper. r, is imp late nothing to do has nothing ndency has of pe tice of 09 no Plaintiff arguess in in op opposition, thatt the 20 2009 notice pendency to do tha , on siti po Plaintiff argue seek to revive not seek do es not ndency does tice of pe no with the 2015 notice'of pendency and the 2015 notice pendency to revive 15 20 the d an cy en nd pe 'of with the 2015 notice tes previously, "a As sta argument. As intiff's argument. the expired one. Th This Court concurs with Plaintiff's states previously, "a with Pla s cur con urt Co is . one the expired filed notice of viously filed which a ion in which notice of pendency ma mayy no nott be be filed in an anyy act action a pre previously notice of d file notice of pendency had expired or or had vacated or celled or can en pendency affecting the same property had been cancelled or vacated expired or be rty pe pro me sa pendency affecting the unwald, 63 A.0 .3d uts ch v. (c) see become ineffective.]McKinney's CPLR 6516(c) see als alsoo De Deutsch v. Gr Grunwald, 63 A.D.3d 16 65 LR CP y's ne Kin Mc e. become ineffectiv of pendency tices of "[s]uccessive no rther, "[s]uccessive 872,873,882 N.Y.S.2d 167 (2d De Dept. 2009). Further, notices pendency 09). Fu 20 pt. (2d 7 16 2d .S. N.Y 2 872, 873, 88 here the 2009 However, here . However, ·'.' 873 wa ld@ un Gr v. may not be filed in the the same action Deutsch v. Grunwald @ 873. the 2009 ch uts De ion act e sam ma y not be filed in was filed pendency was of pendency tice of 2015 no and notice of pendency was filed in the 2007 action the 2015 notice filed ion act 07 20 the in d file s notice of pendency wa the filing of a preclude the not preclude es not tute do The sta in this different action seeking different relief. statute does filing of a ef. The reli t en fer dif g kin see ion act t in this differen to cancel and uest to the req erefore, the Th Id. . ion second notice of pe pendency in a different action. Id. Therefore, request cancel and act t en fer dif a in second notice of ndency 5 [* 6] ;J" if " 'I11 j denied. pendency, is denied. discharge of pendency, notice of 2015 notice the 2015 discharge the Judiciary Law & 475: Judiciary Law§ 11 Judiciary Law S 475 states that: 475 states Judiciary La\!\{§ ,I •I any proceeding in any From the commencement of of an action, special or other other proceeding action, special the commencement From her upon his or her court ... ...,, the party has a lien upon appears for a party who appears attorney who the attorney court verdict, attaches which client's cause of action, claim or counterclaim, which attaches to a verdict, counterclaim, claim action, of client's cause order in final order judgment or final report, settlement, judgment award, settlement, decision, award, determination, decision, report, determination, they whatever hands proceeds thereof her client's client's favor, the proceeds thereof in whatever hands they favor, and the his or her the between settlement may come; and the lien cannot affected any settlement between the by affected be cannot the may come; determination .... McKinney's parties before before or after McKinney's order or determination final order judgment, final after judgment, parties 475. Judiciary Law S 475. Judiciary Law§ 'I'i upon Ms. 475, Levoritz Defendants argue pursuant to Judiciary Law S 475, Levoritz had a lien upon Judiciary Law§ that, pursuant argue t~at, Defendants , ' i 2005 provisions of the parties' economic the e~onomic McMahan's cause provisions parties' 2005 attached to the which attached action, which of:l action, cause o! McMahan's . I,if Coutny Court, Kings Coutny the Kings approval of the approval with the agreement. Therefore, charging lien, with of the the charging Therefore, the agreement. ., " that alleged rights that any alleged grants Levoritz a v~lid interest in the premises, premises, to any superior interest valid and superior grants Levoritz 'I 'I ,II charging lien properly enforced Plaintiff may may have. pefendants that Levoritz enforced his charging Levoritz properly argue that Defendants argue Plaintiff , 1 of all apprised of was apprised Supreme Court, pursuant to Judiciary Law S 475 Kings County County Supreme Court, was the Kings 475 and the Judiciary Law§ pursuant i Levoritz. McMahan and Levoritz. relevant facts concerning the retainer agreement between between Ms. McMahan retainer agreement facts conce,rning relevant 1!;1 ;~ McMahan services to Ms. McMahan Defendants argue Plaintiff was notice of Levoritz's legal services of Levoritz's was on notice that Plaintiff argue that Defendants ii closing. payment at the closing. $950,000.00 payment with premises and the $950,000.00 of the premises p~rchase of the purchase regard to the with regard Ii 'I formalization of a charging the formalization Therefore, nothing fraudulent about the charging lien by the fraudulent about there is nothing Therefore, there , II J.I Judgment Kings younty must be deemed interest of Plaintiff. Plaintiff. superior to any interest deemed superior such must younty and such Judgment in Kings charging lien Levoritz's assertions assertions that simply the of his charging formalization of the formalization judgment is simply that his judgment Levoritz's ~, !r dismiss and thus Plaintiff, even meritorious, is not a basis basis to dismiss even if meritorious, of Plaintiff, that of superior to that thus is superior :1:! IiI! Plaintiff's causes causes of of action. action. Plaintiff's I'Ii-} that Levoritz's determination that However, it is this Court's determination Levoritz's this Court's However, 1! 6 [* 7] assertions assertions are without without merit. merit. Since Since the enactment enactment of Judiciary Judiciary Law§ Law ~ 475, the the statutory statutory I provision provision has limited limited 'the rights of the lien to outcomes outcomes where proceeds have have been been obtained obtained where proceeds in a client's lndosuez v. client's favor. favor. Banque Banque Indosuez v. Sopwith Sop with Holdings N.Y.2d 34, 772 N.E.2d N.E.2d Holdings Corp., 98 N.Y.2d 1112, 745 N.Y.S.2d Therefore, "there N.Y.S.2d 754 (2002). (2002). Therefore, "there must must be proceeds proceeds from litigation from the the litigation ,!,I upon reasoning supports upon which which the lien can affix". affix". Id. This This reasoning that the charging charging lien supports the notion notion that is applicable applicable to the the action action or proceeding proceeding in which appeared and represented represented the client. which he appeared Here; that action and the 2007 2007 action. that is the divorce divorce action action. Levoritz Levoritz did not not seek seek the charging charging lien and judgment judgment in any those actions, any of those actions, but instead instead sought sought judgment entirely new judgment in an entirely action. judgment cannot action. Therefore, Therefore, such such judgment cannot be deemed deemed the formalization charging lien formalization of the charging due due to Levoritz. Levoritz. Therefore, Therefore, the the motion motion to dismiss dismiss pursuant pursuant to Judiciary Judiciary Law § ~ 475, is denied. denied. i Dismissal Dismissal Pursuant Pursuant to CPLR CPLR 5015 5015 CPLR states in pertinent CPLR 5015 5015 states pertinent part, that "[t]he court court which rendered a judgment that "[t]he which rendered judgment or order order may may relieve relieve a party party from from it upon such such terms motion of any terms as may may be just, just, on motion any I! interested interested person person with such notice notice as the court may direct. McKinney's Civil Practice Practice court may direct....." .. " McKinney's Law and Rules Rules 5015(a). 5015(a). Defendants Defendants argue argue that that since since the Kings County County Supreme Supreme Court Court granted granted the judgment judgment and lien, Plaintiff Plaintiff mu~t return return to that court to vacate cannot seek seek that court vacate the judgment judgment and lien and cannot an Order Court. Here, however, Order to vacate vacate in this Court. however, Plaintiff Plaintiff is not himself himself seeking seeking to vacate vacate judgment pursuant the judgment pursuant to CPLR CPLR 5015 5015 and did not so plead. plead. Instead, he is seeking seeking a Instead, finding finding or declaration, declaration, that that the conveyance conveyance made made by Defendants, Defendants, was was fraudulent. Plaintiff fraudulent. Plaintiff i l need not pursue such a claim only in the Court pursue such claim only Court that that granted granted the the judgment judgment and lien. In fact, 7 [* 8] Plaintiff may may well well be able able to pursue pursue these these claims claims in this this Court Court and also also a CPLR CPlR 5015 5015 claim claim Plaintiff :) County. Therefore, Therefore, the motion motion to dismiss dismiss pursuant pursuant to CPLR CPlR 5015, 5015, is denied. denied. in Kings County. the . !I ., Dismissal pursuant pursuant to CPLR CPlR 3016 3016 Dismissal . !~ " ,;'; CPlR § S 3016{b) 3016(b) requires requires that that "[w]here U(w]here a cause cause of of action action is based based upon upon CPLR misrepresentation, fraud, fraud, mistake, mistake, willful willful deceit, deceit, breach breach of of trust, trust, or or undue undue influence, influence, the misrepresentation, circumstances constituting constituting the wrsmg shall shall be stated stated in detail." detail." circumstances Defendants argue argue that that Plaintiff Plaintiff fails fails to give give any specific specific facts facts regarding regarding his claim claim for for Defendants fraudulent conveyance conveyance and only only offers offers conclusory conclusory allegations allegations which which are insufficient insufficient under under fraudulent Plaintiff contends contends that that New New York York Debtor Debtor and Creditor Creditor Law law (''DCL") (UDCl") § S 276, requires requires the law. Plaintiff that Plaintiff Plaintiff prove prove that that a defendant defendant acted acted with actual actual intent intent to hinder, hinder, delay, delay, or defraud defraud that creditors. Further, Further, Defendants Defendants assert assert that that the the actual actual intent intent must must be based based on fact fact and creditors. cannot rest on mere mere suspicion. suspicion. Therefore, Therefore, Defendants Defendants assert assert that that violation violation of DCL DCl § S 276 cannot 276-a, must must be pleaded pleaded with sufficient sufficient particularity particularity pursuant pursuant to CPLR CPlR 3016{b). 3016(b). and 276-a, Gaetano Dev. Corp. Corp.v. A.D.3d 838, 840, 994 N.Y.S.2d N.Y.S.2d 641, 641,643 2014). Gaetano { Lee, 121 A.D.3d 643 (2d Dept. 2014). ,\ i, The Court Court finds finds that that Plaintiff Plaintiff has pleaded pleaded the the specifics specifics of of the the alleged alleged fraudulent fraudulent The ! transactions with sufficient sUfficient particularity particularity to satisfy satisfy CPLR CPlR 3016 3016 and DCL DCl §§ SS 275, 276-a 276-a 11,, and transactions 279. DCl § S 275 275 provides provides that: that: DCL Every conveyance conveyance made made and every every obligation obligation incurred incurred without without fair fair Every consideration when when the the person person making making the the conveyance conveyance or entering entering into the the consideration obligation intends intends or believes believes that that he will incur incur debts debts beyond beyond his ability ability to pay obligation they mature, mature, is fraudulent present and future future creditors creditors as they fraudulent as to both present 1 Joel ~ 276-a 276-a provides provides for fixing of reasonable fees upon upon a finding DCL § for the fixing reasonable attorney's attorney's fees finding that that a conveyance by a debtor debtor was was made made with actual actual intent intent to hinder, hinder, delay delay or defraud defraud either either present present conveyance future creditors. creditors. or future 8 [* 9] unfair the conveyance claim under under this provision requires, requires, in addition addition to the conveyance and unfair this provision "A claim consideration elements elements ... ...,, an element element of intent intent or belief belief that that insolvency insolvency will result" result" Wall consideration , ' (1 Dept. 1999). Street Associates v. Brodsky, Brodsky, 257 A.D.2d A.D.2d 526,528,684 526, 528, 684 N.y.S.2d N.y.S.2d 244,247 244, 247 (1 1999). Associates v. Street judgment Plaintiff alleges alleges that that Defendant Defendant consented consented to a $725,000.00 $725,000.00 money money judgment Plaintiff fees and legal fees against her, even even though allegedly only owed owed Levoritz levoritz $200,000.00 $200,000.00 in legal though she allegedly against incur would incur she would that she that mbney judgment Defendant believed believed that entered, Defendant was entered, judgment was 2013 mbney the 2013 when the that when debts beyond beyond her ability ability to pay, in that, the 2007 2007 contract contract action action was still pending pending and she debts details of his liable for attorney's attorney's fees fees and damages damages. . Plaintiff Plaintiff pleads pleads the details could be held liable I ~ !!~ allegations with great detail. detail. with great allegations 276 provides DCL DCl § S 276 provides that: actual "Every conveyance made and every every obligation obligation incurred incurred with actual conveyance made "Every intent, as distinguished distinguished from from intent intent presumed presumed in law, to hinder, hinder, delay, delay, or intent, defraud either either present present or future future creditors, creditors, is fraudulent fraudulent as to both both present present defraud future creditors" creditors" and future constructive fraud, as opposed "DCl § S 276, u~like unlike DCL DCl § S 275, addresses addresses actual actual fraud, opposed to constructive "DCL Street fraud, required proof proof of unfair unfair consideration consideration or insolvency" insolvency" Wall Street does not required fraud, and does delay, Associates v. Brodsky@ Brodsky@ 247. 'Due 'Due to the difficulty difficulty of proving proving actual actual intent intent to hinder, hinder, delay, Associates v. defraud ... ...,, the pleader pleader is allowed allowed to rely on "badges "badges of fraud" fraud" to support support his case, i.e., or defraud ,iIi gives presence gives circumstances so commonly commonly associated associated with fraudulent transfers "that "that their their presence fraudulent transfers circumstances of Bank of inference of of intent'", intent''', Id. quoting quoting Pen Pak Pak Corp. v. v. LaSalle LaSalle National National Bank rise to an inference Chicago, 240 A.D.2d A.D.2d 384, 386, 658 N.Y.S.2d N.Y.S.2d 407. "Among "Among such such circumstances circumstances are: a Chicago, !C!e ',(I questionable close relationship relationship between between the parties parties to the alleged alleged fraudulent fraudulent transaction; transaction; a questionable close 9 [* 10] transfer transfer not in the the 'jusual course course of business; business; inadequacy inadequacy of of the the consideration; consideration; the transferor's knowledge the creditor's transferor's knowledge of the creditor's claim claim and the inability to pay it; and retention retention of the inability iIIj,i control the transferor control of of the property prope~y by the transferor after after the conveyance." conveyance." Id. ,i Here, the the cau~e of of action action claiming claiming DCL DCl § S 276, clearly clearly alleges alleges sufficient sufficient badges badges of fraud cause of action. action. Plaintiff fraud to support support subh suhh a cause Plaintiff alleges alleges a longstanding longstanding relationship relationship :j:~ between between Defendant Defendant ~nd and her her attorney, attorney, Defendant's Defendant's awareness awareness of Plaintiff's 2007 contract of Plaintiff's 2007 contract ,I ·I action action against against her, the the inability inability to pay a judgment entered against her in that action, and judgment if entered against her that action, ,. " the insufficiency insufficiency of of d~nsideration tbnsideration for the 2013 2013 judgment. Defendant's motion motion judgment. Therefore, Therefore, Defendant's to dismiss, dismiss, pursuant:lto pursuant:!to CPLR CPlR 3016(b), 3016(b), is denied. denied. ;i;~ Dismissal Dismissal pursuant pursuant CPlR 3211 CPLR t6tb (>ri ,Ial 'i Rule 3211 of the Civil Practice of ,,~he Practice Law law and Rules Rules provides, provides, in relevant relevant part part that, ,;II "[a] party judgment dismissing dismissing one or more party may may move move for for judgment more causes causes of action action asserted asserted against against [it] on the ground ground that: that: (1) A defense defense is founded documentary evidence; evidence; or founded upon documentary (2) the the court court has notijurisdiction notijurisdiction of the subject subject matter matter of the the cause cause of action; action; or (7) the the pleading pleading fails!to fails:to state state a cause cause of action action ... ..."" N.Y. Civ. Prac. L. & 3211(a)(1), (a)(2) &~.~- 3211(a)(1), (a)(2) and (a)(7) (a)(7) (McKinney's). (McKinney's). :;:j ,j,I In such the facts facts alleged such motiohs, motiohs, the alleged in the complaint are accepted accepted as true, and the the complaint ! jj~ only whether the only determination determination i~ is,whether the facts alleged fit within within any of facts alleged any recognizable recognizable legal theory theory of ;;~~ recovery. recovery. However, However, this rule does does not apply apply to legal legal conclusions conclusions lacking lacking factual factual support, support, i ii!! or to factual contradicted by documentary factual claims claims that that are contradicted documentary evidence. evidence. See, Doria v. Masucci, Doria v. Masucci, i:1 ' 230 A.D.2d A.D.2d 764 (2d Dept.1996). Dept.1996). L il With With regard regard t6 the motions motions pursuant pursuant to CPLR CPlR 3211 (a)(1 (a)(1),), "[a) "[a] motion motion to dismiss dismiss pursuant 3211(a)(1) pursuant to CPLR CPlR 3211 (a)(1) may may be appropriately appropriately granted only where granted only where the documentary documentary ,,11 !~ !i evidence evidence utterly utterly refutes refutes [the] plaintiff's plaintiff's factual allegations, conclusively conclusively establishing establishing a factual allegations, 10 [* 11] defense Agency, Inc., 303 A.D.2d 755 defense as a matter matter of law". 730 J & J LLC LLC v. v. Fillmore Fillmore Agency, A.D.2d 486, 486,755 N.Y.S.2d N.Y.S.2d 887 (2d Dept., Dept., 2003 2003).). Under Under CPLR CPLR 3211 (a)(2), this Court Court may may be deprived deprived of jurisdiction to vacate judgment. Under jurisdiction vacate another another court's court's judgment. Under CPLR CPLR 3211 (a)(7), initially initially "[t]he "[t]he sole criterion from its four criterion is whether whether the pleading pleading states states a cause cause of action, action, and if iffrom four corners corners factual factual allegations allegations are discerned discerned which which taken taken together together manifest manifest any cause cause of action action cognizable cognizable ". Guggenheimer at law ... ...". Guggenheimer v. v. Ginzburg, Ginzburg, 43 N.Y.2d N.Y.2d 268, 275, 401 N.Y.S.2d N.Y.S.2d 182 (1977). (1977). On i a motion motion to dismiss' dismiss' for failure failure to state state a cause cause of action, action, the the court court must must view view the challenged challenged pleading pleading in the the light light most most favorable favorable to the non-moving non-moving party, and determine determine whether whether the facts facts as alleged alleged fit within within any cognizable cognizable legal theory. theory. Brevtman Brevtman v O/inville Olinville Realty, LLC, 54 AD3d AD3CJ703 2008).See, also, EBC EBC 1, 1, Inc. v Goldman, Goldman, Sachs Sachs & 703 (2d Dept. 2008).See, Realty, (2005); Leon Leon v Martinez, Martinez, 84 NY2d 83 (1994). (1994). Co., 5 NY3d 11, (2005); Thus, a motion motion to dismiss dismiss pursuant pursuant to CPLR CPLR 3211 (a) (7) will not succeed succeed if, taking taking Thus, facts alleged alleged as true true and affording affording them them every every possible possible inference inference favorable favorable to the all facts nonmoving party, the complaint complaint states states in some some recognizable recognizable form any cause cause of action action nonmoving Leon v Martinez, Martinez, supra; supra; Fisherv Fisher v DiPietro. DiPietro. 54 AD3d AD3d 892 (2d Dept Dept 2008); 2008); known to law (see Lepn i Shava B. Pac., LLC LLC v Wilson. Elser, Moskowitz, Moskowitz, Edelman Edelman & Dicker, Dicker, LLP, 38 AD3d AD3d 34, (2d Shava 2006). "Indeed, "Indeed, a motion motion to dismiss dismiss pursuant pursuant to CPLR CPLR 3211 (a)(7) must must be denied denied Dept. 2006). 'unless it has been s,hown shown that that a material material fact fact as claimed claimed by the pleader pleader to be one is not 'unless fact at all and uniess unless it can be said that that no significant significant dispute dispute exists exists regarding regarding it"'. a fact Bokhourv. GT/ GTI Retail Retail Holdings, Holdings, Inc., 94 A.D.3d A.D.3d 682,683, 682, 683, 941 N.Y.S.2d N.Y.S.2d 675,677 675, 677 (2d Dept. Bokhourv. 2012). 2012). Levoritz's motion motion pursuant pursuant to CPLR CPLR 3211 (a)(1) is untimely, untimely, since since such motion motion is to Levoritz's 11 11 [* 12] be made made before before service service of a responsive responsive pleading pleading is required. required. Levoritz Levoritz was served served with the summons April 1, 2015 2015 and did not file his cross-motion summons and compl~int compl~int on April cross-motion to dismiss dismiss until May 20, 2015. 2015. In addition, addition, Levoritz Levoritz filE!ld filE!ldan answer prior prior to filing filing the motion. motion. Therefore, Therefore, an answer ,; ij :i:1 such motion such motion on CPLR CPLR 3211 (a)(1) (a)(1) is untimely. untimely. Furthermore, Furthermore, the the documentary documentary evidence evidence submitted submitted by Levortiz Levortiz does does not utterly utterly refute refute Plaintiff's Plaintiff's factual allegations, conclusively conclusively factual allegations, establishing a defense defense as a matter establishing matter of law. Therefore, CPLR 3211 (a)(1) Therefore, dismissal dismissal on CPLR grounds, grounds, is denied. denied. The already addressed The Court Court has has,already addressed the issue issue raised raised by CPLR CPLR 3211 (a)(2) in its CPLR CPLR II 5015 Levoritz did not expound 5015 discussion, discussion, and,: and,:Levoritz expound on an argument argument under under this statute, for this this statute, I Court Court to further further address address the issue. With regard dismissal pursuant With regard to dismissal pursuant to CPLR CPLR 3211 (a)(7), (a)(7), as previously previously stated, stated, "a motion motion to dismiss dismiss pursuant pursuant to CPLR CPLR 3211 (a)(7) must must be denied denied 'unless 'unless it has·been has'been shown shown that a material fact as claimed claimed by the pleader that material fact pleader to be one unless it can one is not a fact fact at all and unless be said that that no significant significant dispute dispute exists exists regarding regarding it'". it'''. Bokhourv. Bokhourv. GT/ GTI Retail Retail Holdings, Holdings, Inc., i 94 A.D.3d A.D.3d 682, 682,683,941 675,677 683, 941 N.Y.S.2d N.Y.S.2d 675, 677 (2d Dept. 2012). 2012). Here, Defendants Defendants have have not II 1 shown that a materia fact as claimed shown that materia'lI fact claimed is not a fact Further, the the Court Court has already already fact at all. Further, addressed addressed the arguments arguments made made with regard to dismissal dismissal under under this this statute statute and at this juncture, Defendants juncture, Defendants have have not established established that that Plaintiff Plaintiff has waived encumber waived his right to encumber the premises premises with a lien because because he did not place place a lien on the premises premises immediately immediately after after Therefore, dismissal this Court Court granted granted such. such. Therefore, dismissal pursuant pursuant to CPLR CPLR (a)(7) (a)(7) is denied. denied. Dismissal Dismissal pursuant pursuant to CPLR CPLR 3212 3212 It is well established that summary established that summary judgment may be granted granted only only when clear judgment may when it is clear 12 [* 13] that issue of of fact exists, Alvarez v. Prospect Prospect Hosp., Hosp., 68 N.Y.2d N.Y.2d 320, 325, 508 Alvarez v. fact exists, triable issue that no triable the moving N.Y.S.2d 923, 501 N.E.2d N.E.2d 572 (1986). (1986). The burden is upon upon the moving party party to make make a The burden N.Y.S.2d ''1I judgment as a matter prima facie facie showing showing of entitlement entitlement to summary summary judgment matter of law, Zuckerman Zuckerman prima v. City City of of New New York, 49 N.Y.2d N.Y.2d 557, 562, 427 427 N.Y.S.2d N.Y.S.2d 595, 404 404 N.E.2d N.E.2d 718 (1980); (1980); v. 416 N.Y.S.2d Friends of of Animals, v. Associated Fur Mfrs., Mfrs. , Inc., 46 N.Y.2d N.Y.2d 1065, 1067, 1067,416 N.Y.S.2d Associated Fur Animals, Inc. v. Friends showing requires facie showing such a prima N.E.2d 298 (1979). A failure make such prima facie requires a failure to make 298 (1979). 790, 390 N.E.2d Ayotte v. denial regardless of the sufficiency sufficiency of of the opposing opposing papers. papers. Ayotte v. denial of the motion', regardless 619 N.E.2d Gervasio, 81 81 N.Y.2d N.Y.2d 1062, 1063, 1063,601 N.Y.S.2d 463, 463,619 N.E.2d 400 400 (1993). (1993). If a prima prima 601 N.Y.S.2d Gervasio, facie showing has been been made, made, the burden burden shifts shifts to the opposing opposing party party to produce produce facie showing Alvarez, 68 evidentiary proof proof sufficient of material material issues issues of of fact. Alvarez, existence of the existence establish the sufficient to establish evidentiary i 427 Zuckerman, 49 N.Y.2d N.Y.2d at 324, 508 N.Y.S.2d N.Y.S.2d 923, 923,501 N.E.2d 572; Zuckerman, N.Y.2d at 562, 427 501 N.E.2d N.Y.2d ii N.Y.S.2d 595, 404 404 N!E.2d N!E.2d 718. N.Y.S.2d Bestowing the benefit benefit of every every reasonable reasonable inference inference to the party party opposing opposing the Bestowing finds that the Court motion (Boyce (Boyce v. v. Vasquez, Vasquez, 249 A.D.2d Dept., 1998]), 1998]), the Court finds that A.D.2d 724, 726 [3d Dept., motion summary for summary motion for judgment. "[A] there material issues issues offact preclude summary U[A]motion summary judgment. that preclude of fact that there are material , conflicting inferences where conflicting dispute, where facts are in dispute, where the facts granted where judgment ~e granted inferences should not be judgment should may be drawn drawn from from the evidence, evidence, or orwhere there are issues issues of credibility" credibility" Pavane Pavane v. v. Marte, where there may N.Y.S.2d 562, 564 (2d Dept. 2013). 2013). Here, Here, there there are clearly clearly A.D.3d 970, 972, 971 N.Y.S.2d 109 A.D.3d the motion Therefore, the issues of fact appropriate for this Court to determine. determine. Therefore, motion for this Court that are not appropriate fact that issues denied. summary pursuant to CPLR CPLR 3212, 3212, is denied. judgment pursuant summary judgment 13 13 [* 14] Any in motion Any relief relief requested requested motion sequences sequences 1 & 2 not addressed addressed by this Court, is :~ iIi deemed deemed denied. denied. The' foregoing foregoing shall constitute constitute the decision decision and order order of this court. ~ ''II White Plains.'I Plains,:!New York Dated: White New York December 31, 31,,2015 December 2015 ~ e--e. ~ D. WALKER WALKER, , J.S.C. J.S.C. HON. SAM D. 14

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