Weismann v. Robins

191 A.D.2d 497, 594 N.Y.S.2d 337

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1993
• Status: Published

Opinion

—In a proceeding to recover one half of the proceeds derived from the sale of certain real property, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Luciano, J.), entered October 9, 1990, which dismissed the petition.

Ordered that the judgment is affirmed, with costs.

The petitioner contends that the judgment debtor had an interest in certain real property and that in violation of the Debtor and Creditor Law, he fraudulently transferred that interest to the respondent.

The Supreme Court correctly concluded that Debtor and Creditor Law § 273-a is inapplicable in this case. That statute, insofar as relevant, creates a presumption that a conveyance made without fair consideration is fraudulent as to the plaintiff in an action to recover damages "when the person making it is [the] defendant in [said] action * * * without regard to the actual intent of the defendant if, after final judgment for the plaintiff, the defendant fails to satisfy the judgment” (Debtor and Creditor Law § 273-a; see, Polkowski v Mela, 143 AD2d 260). Since the judgment debtor did not have an actual interest in the subject premises, the statute is not applicable.

The petitioner’s remaining contentions are devoid of merit. Bracken, J. P., Lawrence, Eiber and Pizzuto, JJ., concur.