Tornheim v. Tornheim

309 A.D.2d 922, 766 N.Y.S.2d 117

Opinion

In a matrimonial action in which the parties were divorced by judgment dated December 4, 2001, the plaintiff and his attorney, the nonparty, Ernest H. Hammer, appeal from an order of the Supreme Court, Kings County (Marks, J.H.O.), dated May 1, 2002, which, after a hearing, granted that branch of the defendant’s motion which was to vacate a judgment by confession entered in favor of the nonparty and against the plaintiff in the sum of $75,000, and vacated the judgment by confession.

Ordered that the appeal by the plaintiff is dismissed as he is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the defendant is awarded one bill of costs.

Clear and convincing evidence was presented at the hearing that a judgment by confession in favor of the nonparty appellant and against the plaintiff was made and entered with actual intent to hinder and defraud the defendant, a creditor of the plaintiff (see Debtor & Creditor Law §§ 270, 276; Prudential Farms of Nassau County v Morris, 286 AD2d 323, 324 [2001]; Pen Pak Corp. v LaSalle Natl. Bank of Chicago, 240 AD2d 384, 386 [1997]; Apple Bank for Sav. v Contaratos, 204 AD2d 375, 376 [1994]). Consequently, the Supreme Court properly vacated the judgment by confession.

The nonparty appellant’s remaining contentions are either unpreserved for appellate review, without merit, or unnecessary to address in light of the foregoing determination. Altman, J.P., H. Miller, Adams and Townes, JJ., concur.