Scalia v. Glielmi

200 A.D.2d 615, 606 N.Y.S.2d 724, 1994 N.Y. App. Div. LEXIS 370

Opinion

—In an action to set aside an alleged fraudulent conveyance of real property, the defendants appeal from a judgment of the Supreme Court, Orange County (Miller, J.), entered October 8, 1991, which, upon an order of the same court, dated September 16, 1991, granting the plaintiffs’ motion for summary judgment, found the conveyance to be fraudulent, and declared it null and void.

Ordered that the judgment is affirmed, with costs.

To obtain summary judgment, the movant must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Here the plaintiffs made such a showing (see, Zuckerman v City of New York, 49 NY2d 557). The defendants’ opposing papers did not constitute sufficient proof to defeat the motion for summary judgment, because they consisted entirely of conclusory statements and unsubstantiated allegations (see, Zuckerman v City of New York, supra).

We further find that the defendants’ claim that the Supreme Court improperly granted summary judgment because the plaintiffs’ theory of recovery was not asserted in the complaint is without merit. Although the plaintiffs alleged that the defendants’ conveyance of real property was fraudulent under Debtor and Creditor Law § 273-a, and the trial court found it was fraudulent under Debtor and Creditor Law § 275, summary judgment was properly granted because the proof supported the cause of action under section 275 and the opposing party was not misled or prejudiced (see, Deborah Intl. Beauty v Quality King Distribs., 175 AD2d 791, 793; Rubenstein v Rosenthal, 140 AD2d 156, 158). Mangano, P. J., O’Brien, Pizzuto and Santucci, JJ., concur.