Opinion
11032 Index 153821/19
02-13-2020
In re Norma KNOPF, et al., Petitioners–Respondents, v. FELDMAN & ASSOCIATES, PLLC, etc., et al., Respondents, Esposito PLLC, doing business as Esposito Partners, PLLC, et al., Respondents–Appellants.
Esposito, PLLC, New York (Frank Esposito of counsel), for appellants. Berry Law, PLLC, New York (Eric W. Berry of counsel), for respondents.
Esposito, PLLC, New York (Frank Esposito of counsel), for appellants.
Berry Law, PLLC, New York (Eric W. Berry of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about July 11, 2019, which, to the extent appealed from, granted the petition to compel respondents Esposito PLLC d/b/a Esposito Partners, PLLC and Frank Esposito to turn over certain funds, unanimously reversed, on the law, without costs, and the petition dismissed.
Petitioners failed to show that their right to the funds in question was superior to that of respondents (see CPLR 5225[b] ). Contrary to petitioners' contention, respondents did not take the funds in violation of any order of this Court. Petitioners do not have an equitable lien on the funds, because the debtor spent the money on services that were contracted for (see Montanile v. Board of Trustees of Natl. El. Indus. Health Benefit Plan , –––, U.S. ––––, 136 S.Ct. 651, 658, 193 L.Ed.2d 556 [2016] ).
We decline to consider petitioners' fraudulent conveyance theories, raised for the first time on appeal, because the issues are intensely fact-bound and cannot be resolved on the existing record (see Facie Libre Assoc. I, LLC v. SecondMarket Holdings, Inc. , 103 A.D.3d 565, 961 N.Y.S.2d 44 [1st Dept. 2013], lv denied 21 N.Y.3d 866, 2013 WL 5180437 [2013] ).
Contrary to respondents' contention, petitioners' claims are not barred by the doctrine of collateral estoppel (see Buechel v. Bain , 97 N.Y.2d 295, 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001], cert denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002] ).