Hudson Fence Co. v. Fabco Builders, Inc.

80 A.D.2d 578, 435 N.Y.S.2d 782, 1981 N.Y. App. Div. LEXIS 10252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1981
• Status: Published

Opinion

In an action pursuant to the Debtor and Creditor Law to set aside an alleged fraudulent conveyance of a mortgage, defendants Brookdale Developers, Inc., Richard Britt and George Friedland, appeal from an order of the Supreme Court, Westchester County, dated January 9, 1980, which denied their motion to dismiss the first and second causes of action in the complaint. Order affirmed, with $50 costs and disbursements. The complaint clearly states a cause of action against the corporate appellant and, construing the complaint broadly to allege that the individual appellants were, at some point, the recipients of at least a portion of the proceeds of the mortgage allegedly transferred to the corporate appellant in fraud of creditors, it also states a cause of action against the individual appellants for relief pursuant to article 10 of the Debtor and Creditor Law (see Vinlis Constr. Co.'v Roreck, 67 MiCe 2d 942, affd 43 AD2d 911, mot for lv to app dsmd in part and den in part 35 NY2d 715). The action, as pleaded, is distinct from and not barred by the prior dismissal of an action instituted by one of the corporate plaintiffs against appellants pursuant to section 77 of the Lien Law. Hopkins, J. P., Lazer, Gibbons and Gulotta, JJ., concur.