Thompson v. Cooper

91 A.D.3d 461, 936 N.Y.2d 180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2012
• Status: Published

Opinion

Petitioner commenced this special proceeding to set aside respondent Cooper’s conveyance of his luxury condominium to Imperial, an entity in which he had a substantial stock interest. The petition lacks the factual allegations and evidence required to support a finding that Cooper fraudulently conveyed the condominium to Imperial in violation of Debtor and Creditor Law § 273 (see CPLR 409 [b]; 1091 Riv. Ave. LLC v Platinum Capital Partners, Inc., 82 AD3d 404 [2011], appeal dismissed 17 NY3d 769 [2011]; Karr v Black, 55 AD3d 82, 86 [2008], lv denied 11 NY3d 712 [2008]).

However, the petition and the documentary evidence, including a money judgment in plaintiffs favor against Cooper and state and municipal transfer forms indicating that Imperial paid little or no consideration for the condominium, are sufficient to raise triable issues whether Cooper, who at the time of the transfer was a defendant in plaintiff’s action for money damages, fraudulently conveyed the condominium to Imperial in violation of Debtor and Creditor Law § 273-a (see Matter of National Enters., Inc. v Clermont Farm Corp., 46 AD3d 1180, 1182 [2007]). In view of the foregoing, we nostra sponte deem the petition amended to include a claim under Debtor and Creditor Law § 273-a (see CPLR 3025 [c]; Gonfiantini v Zino, 184 AD2d 368, 369 [1992]). Concur — Friedman, J.P, Sweeny, Acosta, Renwick and Abdus-Salaam, JJ. [Prior Case History: 2010 NY Slip Op 32726(U).]