Spielvogel v. Welborne

Appellate Division of the Supreme Court of New York

Spielvogel v. Welborne

175 A.D.2d 830, 573 N.Y.S.2d 414, 1991 N.Y. App. Div. LEXIS 10945

Appellate Division of the Supreme Court of the State of New York·Decided August 12, 1991·Published·Cited by 5 cases

Opinion

— In an action pursuant to Debtor and Creditor Law § 273-a to set aside a conveyance of real property, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Lama, J.), entered October 17, 1989, which denied their motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment is granted.

In their motion for summary judgment, the plaintiffs, who are judgment creditors of the defendant Jack Bergon, made a prima facie showing that Bergon’s transfer of real property to the defendant-respondent Elizabeth Welborne was fraudulent within the meaning of Debtor and Creditor Law § 273-a. In response to this motion, Welborne failed to adduce evidentiary proof in admissible form sufficient to show that she had given fair consideration in return for the conveyance of this property to her. Welborne’s unsubstantiated allegations cannot be regarded as a substitute for admissible proof, and summary judgment should, therefore, have been granted in favor of the plaintiffs (see generally, Merman v Miller, 82 AD2d 826). Bracken, J. P., Kooper, Sullivan and Lawrence, JJ., concur.

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— In an action pursuant to Debtor and Creditor Law § 273-a to set aside a conveyance of real property, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Lama, J.), entered October 17, 1989, which denied their motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment is granted.

In their motion for summary judgment, the plaintiffs, who are judgment creditors of the defendant Jack Bergon, made a prima facie showing that Bergon’s transfer of real property to the defendant-respondent Elizabeth Welborne was fraudulent within the meaning of Debtor and Creditor Law § 273-a. In response to this motion, Welborne failed to adduce evidentiary proof in admissible form sufficient to show that she had given fair consideration in return for the conveyance of this property to her. Welborne’s unsubstantiated allegations cannot be regarded as a substitute for admissible proof, and summary judgment should, therefore, have been granted in favor of the plaintiffs (see generally, Merman v Miller, 82 AD2d 826). Bracken, J. P., Kooper, Sullivan and Lawrence, JJ., concur.

Spielvogel v. Welborne, 175 A.D.2d 830, 573 N.Y.S.2d 414, 1991 N.Y. App. Div. LEXIS 10945 (N.Y. Ct. App. 1991).

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