Opinion
July 26, 1982
In an action, inter alia, to set aside a conveyance of real property as a fraud upon creditors, plaintiff appeals from so much of a judgment of the Supreme Court, Orange County (Green, J.), dated December 2, 1981, as, after a nonjury trial, denied his request for a counsel fee and defendants cross-appeal, as limited by their brief, from so much of the same judgment as set aside the conveyance. Judgment modified, as a matter of discretion, by adding a provision that plaintiff is entitled to an additional allowance pursuant to CPLR 8303 (subd [a], par 2). As so modified, judgment affirmed insofar as appealed from, with costs to plaintiff, and case remitted to Trial Term for an award of an additional allowance. Plaintiff satisfied his burden of establishing that the conduct of defendants constituted a constructive fraud. The difficult course plaintiff has been forced to pursue justifies the award of an additional allowance pursuant to CPLR 8303 (subd [a], par 2) and this matter is remitted to Trial Term for the determination of an appropriate amount (see Scola v. Morgan, 66 A.D.2d 228, app dsmd 47 N.Y.2d 799). Mollen, P.J., Titone, Weinstein and Rubin, JJ., concur.