Opinion
316 Index No. 651911/20 Case No. 2022-02880
08-17-2023
STORCH AMINI P.C., Plaintiff–Appellant, v. David SCHLACHET, Defendant–Respondent.
Amini LLC, New York (Jeffrey Chubak of counsel), for appellant. Andruzzi Law, Bethpage (Anae Petito of counsel), for respondent.
Amini LLC, New York (Jeffrey Chubak of counsel), for appellant.
Andruzzi Law, Bethpage (Anae Petito of counsel), for respondent.
Kapnick, J.P., Friedman, Gesmer, Mendez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Debra James, J.), entered on or about June 10, 2022, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its second cause of action for constructive fraudulent conveyance ( Debtor and Creditor Law § 273 ) and granted defendant's cross-motion for summary judgment dismissing the first cause of action for actual fraudulent conveyance ( Debtor and Creditor Law § 276 ) and the second cause of action in its entirety ( Debtor and Creditor Law §§ 273, 274 ), unanimously reversed, on the law, without costs, the motion granted and the cross-motion denied.
The decedent judgment debtor's Individual Retirement Account (IRA) ceased to be exempt from application to the satisfaction of plaintiff's judgment upon her death, whereupon the assets of the IRA were no longer "held in trust for a judgment debtor" ( CPLR 5205[c] ). To the extent ( Cohen Goldstein, LLP v. Schlachet, 200 A.D.3d 407, 154 N.Y.S.3d 778 [1st Dept. 2021] ) held to the contrary, that holding should not be followed. Since the judgment debtor's IRA lost its exemption upon her death, and the gratuitous transfers from the IRA after her death rendered her estate insolvent, plaintiff has established that those transfers were fraudulent conveyances (see Van de Walle v. Van de Walle, 200 A.D.3d 1095, 1099–1100, 161 N.Y.S.3d 221 [2d Dept. 2021], lv denied 39 N.Y.3d 908, 2023 WL 1827998 [2023] ).