Murray Hill Manor Co. v. Destination Paradise, Inc.

266 A.D.2d 132, 698 N.Y.S.2d 482, 1999 N.Y. App. Div. LEXIS 12345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Emily Goodman, J.), entered on or about August 6, 1998, which, to the extent appealable, denied defendants’ respective cross motions for summary judgment dismissing plaintiffs complaint, unanimously affirmed, without costs.

The issues regarding the IAS Court’s finding that the transfer between defendant Destination Paradise, Inc. and non-party Destination Holiday, Inc. was fraudulent and should be set aside are not properly before this Court since the record does not contain the settled order that the IAS Court directed to implement its decision as to the fraudulent transfer, and no appeal lies from that portion of the appealed paper directing the settlement of an order (CPLR 5512 [a]).

To the extent that defendants appeal from the denial of their cross motions for summary judgment, the IAS Court properly determined that there were issues of fact as to whether the primary individual defendants, Garroni and Bernstein, exercised complete domination and control over the corporation or were acting for non-corporate purposes with respect to the December 1993 payments to the shareholders, which plaintiff claims rendered the corporation insolvent, and as to whether such transfers to the individual shareholders in 1993 were fraudulent within the meaning of Debtor and Creditor Law §§ 273 and 274, and thus void with respect to the corporation’s creditors. Concur — Ellerin, P. J., Williams, Lerner, Rubin and Saxe. JJ.