Opinion
2012-01-10
Elaine THOMPSON, Petitioner–Respondent, v. Mel COOPER, etc., Respondent,Imperial Capital LLC, Respondent–Appellant.
Monteiro & Fishman LLP, Hempstead (Michael N. Fishman of counsel), for appellant. Elaine J. Thompson, respondent pro se.
Monteiro & Fishman LLP, Hempstead (Michael N. Fishman of counsel), for appellant. Elaine J. Thompson, respondent pro se.
FRIEDMAN, J.P., SWEENY, ACOSTA, RENWICK, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered October 4, 2010, which denied respondent Imperial Capital LLC's motion to dismiss the petition for failure to state a cause of action, unanimously modified, on the law, to grant the motion as to the claim under Debtor and Creditor Law § 273, and to deem the petition amended to include a claim under Debtor and Creditor Law § 273–a, and otherwise affirmed, without costs.
Petitioner commenced this special proceeding to set aside respondent Cooper's conveyance of his luxury condominium to Imperial, an entity in which he had a substantial stock interest. The petition lacks the factual allegations and evidence required to support a finding that Cooper fraudulently conveyed the condominium to Imperial in violation of Debtor and Creditor Law § 273 ( see CPLR 409[b]; 1091 Riv. Ave. LLC v. Platinum Capital Partners, Inc., 82 A.D.3d 404, 917 N.Y.S.2d 854 [2011], appeal dismissed 17 N.Y.3d 769, 929 N.Y.S.2d 73, 952 N.E.2d 1066 [2011]; Karr v. Black, 55 A.D.3d 82, 86, 863 N.Y.S.2d 26 [2008], lv. denied 11 N.Y.3d 712, 872 N.Y.S.2d 74, 900 N.E.2d 557 [2008] ).
However, the petition and the documentary evidence, including a money judgment in plaintiff's favor against Cooper and state and municipal transfer forms indicating that Imperial paid little or no consideration for the condominium, are sufficient to raise triable issues whether Cooper, who at the time of the transfer was a defendant in plaintiff's action for money damages, fraudulently conveyed the condominium to Imperial in violation of Debtor and Creditor Law § 273–a ( see Matter of National Enters., Inc. v. Clermont Farm Corp., 46 A.D.3d 1180, 1182, 848 N.Y.S.2d 420 [2007] ). In view of the foregoing, we nostra sponte deem the petition amended to include a claim under Debtor and Creditor Law § 273–a ( see CPLR 3025[c]; Gonfiantini v. Zino, 184 A.D.2d 368, 369, 584 N.Y.S.2d 847 [1992] ).