Petrocelli v. Petrocelli Elec. Co., Inc.

Appellate Division of the Supreme Court of New York

Petrocelli v. Petrocelli Elec. Co., Inc.

121 A.D.3d 596, 995 N.Y.S.2d 552

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 28, 2014

Docket13327 651605/13

StatusPublished

Cited by3 cases

This text of 121 A.D.3d 596 (Petrocelli v. Petrocelli Elec. Co., Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Petrocelli v. Petrocelli Elec. Co., Inc., 121 A.D.3d 596, 995 N.Y.S.2d 552 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 5, 2013, which, to the extent appealed from as limited by the briefs, in this proceeding under CPLR article 52, directed that the judgment debtors would have the burden of proof at the turnover hearing, unanimously reversed, on the law, without costs, to direct that petitioner judgment creditor will have the burden of proof.

The burden of proof in a turnover proceeding rests with the judgment creditor to establish that contested transfers were without adequate consideration or otherwise fraudulent (see National Communications Corp. v Bloch, 259 AD2d 427 [1st Dept 1999]). Nevertheless, petitioner is entitled to broad discovery to assist in prosecuting the claims, particularly since the evidence is largely within the possession of the judgment debtors and the transferees (see id.; Gryphon Dom. VI, LLC v GBR Info. Servs., Inc., 29 AD3d 392 [1st Dept 2006]; CPLR 5223).

Concur — Friedman, J.P, Renwick, Manzanet-Daniels, Feinman and Kapnick, JJ.

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Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 5, 2013, which, to the extent appealed from as limited by the briefs, in this proceeding under CPLR article 52, directed that the judgment debtors would have the burden of proof at the turnover hearing, unanimously reversed, on the law, without costs, to direct that petitioner judgment creditor will have the burden of proof.

The burden of proof in a turnover proceeding rests with the judgment creditor to establish that contested transfers were without adequate consideration or otherwise fraudulent (see National Communications Corp. v Bloch, 259 AD2d 427 [1st Dept 1999]). Nevertheless, petitioner is entitled to broad discovery to assist in prosecuting the claims, particularly since the evidence is largely within the possession of the judgment debtors and the transferees (see id.; Gryphon Dom. VI, LLC v GBR Info. Servs., Inc., 29 AD3d 392 [1st Dept 2006]; CPLR 5223).

Concur — Friedman, J.P, Renwick, Manzanet-Daniels, Feinman and Kapnick, JJ.

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Bluebook (online)

121 A.D.3d 596, 995 N.Y.S.2d 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrocelli-v-petrocelli-elec-co-inc-nyappdiv-2014.

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