Aetna Casualty & Surety Co. v. Hambly

Appellate Division of the Supreme Court of New York

Aetna Casualty & Surety Co. v. Hambly

56 A.D.2d 572, 391 N.Y.S.2d 178, 1977 N.Y. App. Div. LEXIS 10601

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 1977

StatusPublished

This text of 56 A.D.2d 572 (Aetna Casualty & Surety Co. v. Hambly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aetna Casualty & Surety Co. v. Hambly, 56 A.D.2d 572, 391 N.Y.S.2d 178, 1977 N.Y. App. Div. LEXIS 10601 (N.Y. Ct. App. 1977).

Pincite

Opinion

In actions, Inter alia, to set

aside certain conveyances allegedly made in fraud of creditors, these cross appeals are from an order of the Supreme Court, Orange County, dated September 8, 1976, which (1) dismissed certain defenses asserted in the three actions herein, (2) failed to dismiss the twelfth defense interposed by defendant Doris Hambly with respect to the action bearing Index No. 3779/ 1973 and (3) denied, with leave to renew, the application to disqualify Michael M. Platzman, Esq., as attorney for certain of the defendants. Order modified, on the law, by deleting from the third decretal paragraph thereof the words: "are dismissed as being without merit, the 'twelfth’ not being dismissed,” and substituting therefor the following: "and twelfth are dismissed as being without merit”. As so modified, order affirmed, with one bill of costs to plaintiff payable by appellants-respondents jointly. The affirmative defenses asserted in the three similar actions herein were properly dismissed for the reasons set forth in the opinion at Special Term. However, the twelfth affirmative defense of Doris F. Hambly in the action bearing Index No. 3779/73, which was preserved by Special Term, should also have been dismissed. It alleges estoppel (as a defense to an action alleging fraudulent conveyances) based on the allegation that plaintiff, as a judgment creditor, orally promised Mrs. Hambly, one of the judgment debtors, to abstain from collection of the judgment as against her "in consideration of the furnishing of certain data,” and that she "believed such false and fraudulent representations and relied thereon.” The absence in the record of any indication as to how she possibly could have been damaged thereby requires dismissal of this affirmative defense. Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.

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In actions, Inter alia, to set

aside certain conveyances allegedly made in fraud of creditors, these cross appeals are from an order of the Supreme Court, Orange County, dated September 8, 1976, which (1) dismissed certain defenses asserted in the three actions herein, (2) failed to dismiss the twelfth defense interposed by defendant Doris Hambly with respect to the action bearing Index No. 3779/ 1973 and (3) denied, with leave to renew, the application to disqualify Michael M. Platzman, Esq., as attorney for certain of the defendants. Order modified, on the law, by deleting from the third decretal paragraph thereof the words: "are dismissed as being without merit, the 'twelfth’ not being dismissed,” and substituting therefor the following: "and twelfth are dismissed as being without merit”. As so modified, order affirmed, with one bill of costs to plaintiff payable by appellants-respondents jointly. The affirmative defenses asserted in the three similar actions herein were properly dismissed for the reasons set forth in the opinion at Special Term. However, the twelfth affirmative defense of Doris F. Hambly in the action bearing Index No. 3779/73, which was preserved by Special Term, should also have been dismissed. It alleges estoppel (as a defense to an action alleging fraudulent conveyances) based on the allegation that plaintiff, as a judgment creditor, orally promised Mrs. Hambly, one of the judgment debtors, to abstain from collection of the judgment as against her "in consideration of the furnishing of certain data,” and that she "believed such false and fraudulent representations and relied thereon.” The absence in the record of any indication as to how she possibly could have been damaged thereby requires dismissal of this affirmative defense. Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.

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Bluebook (online)

56 A.D.2d 572, 391 N.Y.S.2d 178, 1977 N.Y. App. Div. LEXIS 10601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-casualty-surety-co-v-hambly-nyappdiv-1977.