Tender Touch Health Care Servs. Inc. v Tnuzeg LLC 2024 NY Slip Op 30913(U) March 19, 2024 Supreme Court, New York County Docket Number: Index No. 653544/2021 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 653544/2021 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 03/19/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
TENDER TOUCH HEAL TH CARE SERVICES INC., INDEX NO. 653544/2021 TENDER TOUCH REHAB SERVICES LLC,
Petitioners, MOTION DATE 12/21/2023
- V - MOTION SEQ. NO. 004 TNUZEG LLC, 300 BROADWAY HEALTHCARE LLC, VISTACARE, LLC, DECISION+ ORDER ON MOTION Respondents.
----------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 004) 118, 119, 120, 121, 122,123,124,125,126,127,128,129,130,131,132,133, 134 were read on this motion for ATTORNEY'S FEES and LEAVE TO REARGUE/RENEW
Petitioners Tender Touch Health Care Services, Inc.'s and Tender Touch Rehab Services
LLC's ("Tender Touch") motion for attorneys' fees and costs against Respondent Vistacare LLC
("Vistacare") is granted in the amount of $185,000. Vistacare' s cross-motion for leave to
reargue and leave to renew the Court's November 30, 2023, order (NYSCEF 114) is denied.
A. Background
In 2021, the Court confirmed a Beth Din (rabbinical court) Judgment (the "Award") in
favor of Tender Touch and against Respondents Tnuzeg LLC ("Tnuzeg") and 30 Broadway
Healthcare LLC ("30 Broadway"), and ordered further proceedings to determine whether Award
is binding upon Vistacare (Tender Touch Health Care Services Inc. v Tnuzeg LLC, 2021 N.Y.
Slip Op. 32555[U], [N.Y. Sup Ct, New York County 2021], affd, appeal dismissed, 211 A.D.3d
447 [1st Dept 2022]). On March 30, 2022, the Court entered judgment against Tnuzeg and 30
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Broadway, and severed the remaining claim seeking to impose liability against Vistacare
pursuant to CPLR 5225(b) (NYSCEF 70).
On November 30, 2023, the Court issued a decision and order finding that Vistacare was
the recipient of an intentional fraudulent transfer from Respondents Tnuzeg and 30 Broadway
under former Section 276 of the Debtor and Creditor Law (Tender Touch Health Care Services
Inc. v Tnuzeg LLC, 2023 N.Y. Slip Op. 34289[U] [N.Y. Sup Ct, New York County 2023]).
Tender Touch subsequently filed this application for attorneys' fees and Vistacare cross-moved
for leave to reargue and renew the Court's November 30, 2023, order.
B. Discussion
a. Tender Touch's Application for Attorney's Fees is Granted
Former Section 276-a of the Debtor and Creditor Law, which is applicable here, provides
that the Court "shall fix the reasonable attorney's fees of the creditor. .. " in the case of an
intentional fraudulent transfer. In order to demonstrate an entitlement to relief, the movant need
only demonstrate that "the conveyance was done with the actual intent to hinder, delay or
defraud" (Posner v S. Paul Posner 1976 Irrevocable Family Tr., 12 AD3d 177, 179 [1st Dept
2004]). As determined in the November 30, 2023, order, Tender Touch has established liability
against Vistacare under former Section 276 and is entitled to a fee award under Section 276-a
(Goldenberg v Friedman, 191 AD3d 641 [2d Dept 2021]).
Vistacare' s argument that CPLR 5225(b) does not provide for the award of a money
judgment is rejected as the statute permits for the recovery of "money or other personal
property." CPLR 5225(b) may be utilized against fraudulent transferees, including alter egos
and successors, like Vistacare, without the need to commence a plenary action (Mitchell v Lyons
Professional Services, Inc., 727 F Supp 2d 120, 123 [EDNY 2010] citing WBP Cent. Assocs.,
653544/2021 TENDER TOUCH HEAL TH CARE vs. TNUZEG LLC Page 2 of 5 Motion No. 004
[* 2] 2 of 5 INDEX NO. 653544/2021 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 03/19/2024
LLC v. DeCola, 50 A.D.3d 693 [2d Dept 2008]; Rockefeller v Statement Services, Corp., 204
AD3d 920, 921 [2d Dept 2022]).
Vistacare' s argument that Jewish law prohibits the charging of interest is also rejected.
The arbitration agreement provides that "[t]he parties submit themselves to the personal
jurisdiction of the courts of the State of New York and/or in any court of competent jurisdiction
for any action or proceeding to confirm or enforce a decree of the arbitrators pursuant to Article
75 of the New York Civil Practice Law and Rules" (NYSCEF 3). Had the parties wanted to
eliminate interest, they could have done so in their agreement. The Award has been confirmed
and this is now a fraudulent transfer proceeding under New York law in connection with
enforcing this Court's judgment.
Under Section 276-a, "[i]n awarding attorneys' fees, the Court must take into
consideration proof of billing and the quantum meruit value of the services rendered by counsel"
(JH Capital LLC v Skyllas, 66 Misc 3d 1217(A) [Sup Ct New York County 2019] citing
Bankers Fed. Sav. Bank FSB v. Off W Broadway Devs., 224 AD2d 376,378 [1st Dept 1996]).
"Among the factors to be considered when setting appropriate attorneys' fees are: the 'time and
labor required, the difficulty of the questions involved, and the skill required to handle the
problems presented; the lawyer's experience, ability and reputation; the amount involved and
benefit resulting to the client from the services'" (id. quoting In re Freeman's Estate, 34 NY2d 1,
9 [1974]).
With respect to the amount of legal fees sought, Vistacare does not dispute any particular
charges and instead broadly argues that no fees are warranted. In the fraudulent conveyance
context, the Court need not segregate out the fees incurred in litigating "inextricably intertwined"
claims (Posner, 12 AD3d at 179). On the other hand, fees may not be recovered for issues that
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[* 3] 3 of 5 INDEX NO. 653544/2021 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 03/19/2024
are entirely separate ( UrbanAmerica, L.P. II v Carl Williams Group, L.L. C., 95 AD3d 642, 644
[1st Dept 2012]).
The Court has reviewed Tender Touch counsel's time entries and most recent invoice
(NYSCEF 124 and 134) seeking a total of $207,406.08. The Court finds that a substantial
portion of this proceeding concerned the fraudulent transfer issue and Vistacare' s liability.
Accordingly, attorneys' fees and disbursements are awarded in the amount of one hundred and
eighty-five thousand dollars ($185,000), which is approximately 90% of the amount sought.
This award shall be docketed as a judgment by the Clerk at Tender Touch's request (CPLR
2222).
C. Vistacare's Motion for Leave to Reargue and Leave to Renew is Denied
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Tender Touch Health Care Servs. Inc. v Tnuzeg LLC 2024 NY Slip Op 30913(U) March 19, 2024 Supreme Court, New York County Docket Number: Index No. 653544/2021 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 653544/2021 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 03/19/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X
TENDER TOUCH HEAL TH CARE SERVICES INC., INDEX NO. 653544/2021 TENDER TOUCH REHAB SERVICES LLC,
Petitioners, MOTION DATE 12/21/2023
- V - MOTION SEQ. NO. 004 TNUZEG LLC, 300 BROADWAY HEALTHCARE LLC, VISTACARE, LLC, DECISION+ ORDER ON MOTION Respondents.
----------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 004) 118, 119, 120, 121, 122,123,124,125,126,127,128,129,130,131,132,133, 134 were read on this motion for ATTORNEY'S FEES and LEAVE TO REARGUE/RENEW
Petitioners Tender Touch Health Care Services, Inc.'s and Tender Touch Rehab Services
LLC's ("Tender Touch") motion for attorneys' fees and costs against Respondent Vistacare LLC
("Vistacare") is granted in the amount of $185,000. Vistacare' s cross-motion for leave to
reargue and leave to renew the Court's November 30, 2023, order (NYSCEF 114) is denied.
A. Background
In 2021, the Court confirmed a Beth Din (rabbinical court) Judgment (the "Award") in
favor of Tender Touch and against Respondents Tnuzeg LLC ("Tnuzeg") and 30 Broadway
Healthcare LLC ("30 Broadway"), and ordered further proceedings to determine whether Award
is binding upon Vistacare (Tender Touch Health Care Services Inc. v Tnuzeg LLC, 2021 N.Y.
Slip Op. 32555[U], [N.Y. Sup Ct, New York County 2021], affd, appeal dismissed, 211 A.D.3d
447 [1st Dept 2022]). On March 30, 2022, the Court entered judgment against Tnuzeg and 30
653544/2021 TENDER TOUCH HEAL TH CARE vs. TNUZEG LLC Page 1 of 5 Motion No. 004
[* 1] 1 of 5 INDEX NO. 653544/2021 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 03/19/2024
Broadway, and severed the remaining claim seeking to impose liability against Vistacare
pursuant to CPLR 5225(b) (NYSCEF 70).
On November 30, 2023, the Court issued a decision and order finding that Vistacare was
the recipient of an intentional fraudulent transfer from Respondents Tnuzeg and 30 Broadway
under former Section 276 of the Debtor and Creditor Law (Tender Touch Health Care Services
Inc. v Tnuzeg LLC, 2023 N.Y. Slip Op. 34289[U] [N.Y. Sup Ct, New York County 2023]).
Tender Touch subsequently filed this application for attorneys' fees and Vistacare cross-moved
for leave to reargue and renew the Court's November 30, 2023, order.
B. Discussion
a. Tender Touch's Application for Attorney's Fees is Granted
Former Section 276-a of the Debtor and Creditor Law, which is applicable here, provides
that the Court "shall fix the reasonable attorney's fees of the creditor. .. " in the case of an
intentional fraudulent transfer. In order to demonstrate an entitlement to relief, the movant need
only demonstrate that "the conveyance was done with the actual intent to hinder, delay or
defraud" (Posner v S. Paul Posner 1976 Irrevocable Family Tr., 12 AD3d 177, 179 [1st Dept
2004]). As determined in the November 30, 2023, order, Tender Touch has established liability
against Vistacare under former Section 276 and is entitled to a fee award under Section 276-a
(Goldenberg v Friedman, 191 AD3d 641 [2d Dept 2021]).
Vistacare' s argument that CPLR 5225(b) does not provide for the award of a money
judgment is rejected as the statute permits for the recovery of "money or other personal
property." CPLR 5225(b) may be utilized against fraudulent transferees, including alter egos
and successors, like Vistacare, without the need to commence a plenary action (Mitchell v Lyons
Professional Services, Inc., 727 F Supp 2d 120, 123 [EDNY 2010] citing WBP Cent. Assocs.,
653544/2021 TENDER TOUCH HEAL TH CARE vs. TNUZEG LLC Page 2 of 5 Motion No. 004
[* 2] 2 of 5 INDEX NO. 653544/2021 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 03/19/2024
LLC v. DeCola, 50 A.D.3d 693 [2d Dept 2008]; Rockefeller v Statement Services, Corp., 204
AD3d 920, 921 [2d Dept 2022]).
Vistacare' s argument that Jewish law prohibits the charging of interest is also rejected.
The arbitration agreement provides that "[t]he parties submit themselves to the personal
jurisdiction of the courts of the State of New York and/or in any court of competent jurisdiction
for any action or proceeding to confirm or enforce a decree of the arbitrators pursuant to Article
75 of the New York Civil Practice Law and Rules" (NYSCEF 3). Had the parties wanted to
eliminate interest, they could have done so in their agreement. The Award has been confirmed
and this is now a fraudulent transfer proceeding under New York law in connection with
enforcing this Court's judgment.
Under Section 276-a, "[i]n awarding attorneys' fees, the Court must take into
consideration proof of billing and the quantum meruit value of the services rendered by counsel"
(JH Capital LLC v Skyllas, 66 Misc 3d 1217(A) [Sup Ct New York County 2019] citing
Bankers Fed. Sav. Bank FSB v. Off W Broadway Devs., 224 AD2d 376,378 [1st Dept 1996]).
"Among the factors to be considered when setting appropriate attorneys' fees are: the 'time and
labor required, the difficulty of the questions involved, and the skill required to handle the
problems presented; the lawyer's experience, ability and reputation; the amount involved and
benefit resulting to the client from the services'" (id. quoting In re Freeman's Estate, 34 NY2d 1,
9 [1974]).
With respect to the amount of legal fees sought, Vistacare does not dispute any particular
charges and instead broadly argues that no fees are warranted. In the fraudulent conveyance
context, the Court need not segregate out the fees incurred in litigating "inextricably intertwined"
claims (Posner, 12 AD3d at 179). On the other hand, fees may not be recovered for issues that
653544/2021 TENDER TOUCH HEAL TH CARE vs. TNUZEG LLC Page 3 of 5 Motion No. 004
[* 3] 3 of 5 INDEX NO. 653544/2021 NYSCEF DOC. NO. 135 RECEIVED NYSCEF: 03/19/2024
are entirely separate ( UrbanAmerica, L.P. II v Carl Williams Group, L.L. C., 95 AD3d 642, 644
[1st Dept 2012]).
The Court has reviewed Tender Touch counsel's time entries and most recent invoice
(NYSCEF 124 and 134) seeking a total of $207,406.08. The Court finds that a substantial
portion of this proceeding concerned the fraudulent transfer issue and Vistacare' s liability.
Accordingly, attorneys' fees and disbursements are awarded in the amount of one hundred and
eighty-five thousand dollars ($185,000), which is approximately 90% of the amount sought.
This award shall be docketed as a judgment by the Clerk at Tender Touch's request (CPLR
2222).
C. Vistacare's Motion for Leave to Reargue and Leave to Renew is Denied
Under CPLR 2221(d), "[a] motion for leave to reargue, addressed to the sound discretion
of the court, may be granted upon a showing that the court overlooked or misapprehended the
relevant facts or misapplied any controlling principle of law" (Cortlandt St. Recovery Corp. v
Bonderman, 75 Misc 3d 469,475 [Sup Ct, NY County 2022] [collecting cases]. "A motion for
leave to renew ... shall be based upon new facts not offered on the prior motion that would
change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable j ustifi cation
for the failure to present such facts on the prior motion" (CPLR 2221[e] [3]) (Luna v Port Auth.
of New York and New Jersey, 21 AD3d 324,325 [1st Dept 2005]).
Vistacare has not established that the Court overlooked or misapprehended any facts or
misapplied the law. Vistacare has not advanced any new facts and, even if it had, Vistacare has
not established a reasonable justification for failing to complete discovery and submit briefing as
directed by the Court in connection with Petitioner's fraudulent transfer claim (NYSCEF 116
[Tr. 8-11]).
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Accordingly, it is
ORDERED that Petitioners Tender Touch Health Care Services, Inc.'s and Tender
Touch Rehab Services LLC' s motion for attorneys' fees and costs as well as for the entry of a
judgment against Respondent Vistacare LLC is GRANTED IN PART insofar as Tender Touch
is awarded one hundred eighty-five thousand dollars ($185,000) in attorney's fees from
Vistacare; it is further
ORDERED that, upon a request by Petitioners, that the Clerk of Court docket this order
as a judgment pursuant to CPLR 2222; it is further
ORDERED that Vistacare's cross-motion for leave to reargue and leave to renew is
DENIED.
This constitutes the decision and order of the Court.
3/19/2024 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
653544/2021 TENDER TOUCH HEAL TH CARE vs. TNUZEG LLC Page 5 of 5 Motion No. 004
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