Inland Mtge. Capital Corp. v Aslansan
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Inland Mtge. Capital Corp. v Aslansan 2018 NY Slip Op 33844(U) May 14, 2018 Supreme Court, Saratoga County Docket Number: 20152131 Judge: Thomas D. Nolan 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. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA INLAND MORTGAGE CAPITAL CORPORATION, DECISION AND ORDER RJI No. 45-1-2017-0255 Index No. 20152131 Plaintiff, -againstKAAN ASLANSAN and A YSEL ASLANSAN, Defendants. PRESENT: HON. THOMAS D. NOLAN, JR. Supreme Co "T) APPEARANCES: ·".:¥KMAN LLP 1ai~m1 r- f'l 0 oosevelt Boulevard , New York 11530 YUZEK GAINEN CARROLL & BERTOLOTTI, LLP for Defendants , ~;Pfu.k Avenue New York, New York 10177 ;ra~ tto~ys Defendants move pursuant to CPLR 2221 ( d) for leave to reargue that portion of the motion underlying the court's decision, order, and judgment dated November 22, 2017 which granted summary judgment to plaintiff on its fourth cause of action. The fourth cause of action is based on Debtor and Creditor Law§ 276-a, and as the result of the relief the court granted to plaintiff, plaintiff was deemed entitled to recover from defendants its reasonable attorneys' fees. Defendants contend that the court misinterpreted the law or misapplied it to the facts and .that reargument thus lies and that upon reargument, plaintiff asks that the court reconsider the facts and the law and deny summary judgment to the plaintiff on the complaint's fourth cause of [* 2] action. Plaintiff opposes and cross-moves for an order fixing the amount of attorneys' fees to be recovered from defendants on its fourth cause of action. The principal rationale for defendants' motion is their contention that to grant relief under § 276-a, the court must determine that defendant Kaan Aslansan, the transferee of the property, had the actual intent to hinder, delay, or defraud the plaintiff and to thus impair collection of the money judgment plaintiff has against defendant Aysel Aslansan and the Estate ofEsat Aslansan, a former defendant, 1 and that the evidence presented by the parties on the motion does not support the finding of actual intent. A motion for leave to reargue is addressed t~i~\ e court's discretion and should be granted if the court overlooked significant facts or mi ~:Q3d Here, relevant precedent de 1152 (3rd Dept 2017); Loris v S&W s that reargument is appropriate and that the court thus reconsiders its determination that plaintiff was entitled to summary judgment on the complaint's fourth cause of action. Debtor and Creditor Law§ 276-a provides, in relevant part, in order for attorneys' fees to be awarded that both the judgment debtor that effected the conveyance and the transferee that acquired the property be determined to have had "actual intent, as distinguished from intent presumed in law, to hinder, delay or defraud" the plaintiff, a judgment creditor. Key Bank of 1 After commencement of this action, Esat Aslansan died, and the action against him was discontinued by stipulation. 2 [* 3] . ' New York v Diamond, 203 AD2d 896 (4th Dept 1994). Actual intent must be proved by the judgment creditor by clear and convincing evidence and insofar as§ 276-a is concerned against both the transferee and the transferor. Marine Midland Bank v Murkoft, 120 AD2d 122 (2nd Dept 1986); Carey v Crescenz, 923 F2d 18 (2nd Cir 1991); Matter of Xiang Yof1:g Gao, 560 B.R. 50, 65-66 (U.S. Bankruptcy Ct, ED New York 2016); Matter of Singh, 434 B.R. 298 (U.S. Bankruptcy Ct, ED New York 2010). Applying this principle to the facts here leads the court to conclude that while plaintiffs proof, clearly and convincingly support the court' s finding of actual fraud on the part of the deceased transferor, Esat Aslansan, that proof falls short of demonstrating as a matter of law that it.. "'if.!!, Aysel Aslansan and Kaan Aslansan acted with actuaf'" . audulent intent when the facts are viewed, as the court must, in the light most favorable . . · . Upon reconsideration of the record and in particular the affidavits of Kaan Asians ".J.Aslansan and in light of the controlling relevant precede·nts, triable issues of fact •·i:·· · ether these defendants acted with actual intent to hinder, delay, or defraud the plai Defendants' motion for reargument is granted, without costs, and upon reargument that portion of the court's decision, order and judgment dated November 22, 2018 which granted summary judgment to plaintiff on its fourth cause of action is vacated and plaintiffs motion for summary judgment on its fourth cause of action is denied, without costs. Plaintiffs cross motion is thus moot and it is denied, without costs. This constitutes the decision and order of the court. The original decision and order is returned to counsel for defendants. All original motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. Counsel for defendants is not relieved from the applicable 3 [* 4] • provisions of CPLR 2220 relating to filing, entry, and notice of entry of the decision and order. So Ordered. DATED: May 14, 2018 Saratoga Springs, New York HON. THOMAS D. NOLA , JR. Supreme Court Justic ' 4
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