Calfa v. Sau Lam Cheung

121 A.D.3d 1029, 995 N.Y.S.2d 586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 2014
• Docket: 2013-02778
• Status: Published

Opinion

In an action, inter alia, to recover damages for the transfer of property without fair consideration in violation of Debtor and Creditor Law § 273-a, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated December 17, 2012, which denied his motion for summary judgment on the second cause of action insofar as asserted against the defendants Pui Din Lee and Winnie Fong, without prejudice to renewal after completion of discovery.

Ordered the that the order is affirmed, with costs.

The second cause of action alleged that the defendants violated Debtor and Creditor Law article 10. The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the second cause of action insofar as asserted against the defendants Pui Din Lee and Winnie Fong. The plaintiffs submissions failed to eliminate all triable issues of fact regarding, inter alia, whether the challenged transfers of funds were made in good faith to satisfy antecedent debts (see Debtor and Creditor Law § 272 [a]; Fernbach, LLC v Calleo, 92 AD3d 831, 832-833 [2012]; cf. Prudential Farms of Nassau County v Morris, 286 AD2d 323, 323 [2001]; Century 21 Constr. Corp. v Rabolt, 143 AD2d 873 [1988]; Small & Landesman v Baronick, 143 AD2d 221, 222-223 [1988]).

The failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the plaintiff s motion for summary judgment, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Dickerson, J.E, Leventhal, Sgroi and LaSalle, JJ., concur.