Joseph v. Giacalone

209 A.D.2d 672, 619 N.Y.S.2d 956, 1994 N.Y. App. Div. LEXIS 11751

Opinion

—In an action by a judgment creditor pursuant to Debtor and Creditor Law article 10 to set aside a transfer of real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Lama, J.), dated July 1, 1993, which denied his motion for summary judgment setting aside the transfer.

Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate judgment.

The Supreme Court erred in failing to grant summary judgment to the plaintiff under the circumstances of this case. The plaintiff made a prima facie showing that the transfer of real property by the defendant to the defendant’s brother was fraudulent within the meaning of Debtor and Creditor Law § 273. In opposition to the motion, the defendant failed to establish the existence of triable issues of fact and therefore, summary judgment should have been granted to the plaintiff (see, Matter of American Inv. Bank v Marine Midland Bank, 191 AD2d 690, 691-692; Ede v Ede, 193 AD2d 940; Spielvogel v Welbourne, 175 AD2d 830). Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.