Peacock Holdings, Inc. v. Keefe & Keefe, Inc.

232 A.D.2d 331, 648 N.Y.S.2d 608, 1996 N.Y. App. Div. LEXIS 11222

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered October 31, 1994, awarding plaintiff damages and bringing up for review an order, same court and Justice, entered October 26, 1994, which granted plaintiff’s motion for summary judgment in lieu of complaint, unanimously affirmed, with costs. The appeal from such order is unanimously dismissed, without costs, as subsumed within the appeal from such judgment. Order, same court and Justice, entered June 9, 1995, in a related action by plaintiff to enforce security agreements covering the obligations at issue in the first action, granting plaintiff’s motion for summary judgment, unanimously affirmed, with costs.

The IAS Court properly rejected parol evidence offered to show that the promissory notes and security agreements in issue were fraudulent shams to defraud the IRS, entered into to make what was actually a gift, or at most a conditional loan, look like an unconditional promise to pay (see, Phillips v Cioffi, 204 AD2d 94, 95, Iv denied 85 NY2d 810). In any event, the parol evidence aside, defendants fail to set forth the details of the alleged fraud with the requisite specificity (see, Banner Indus. v Key B.H. Assocs170 AD2d 246). Concur—Rosenberger, J. P., Wallach, Kupferman, Nardelli and Mazzarelli, JJ.