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Winston Capital, LLC v. Abadiam

February 2, 2010

IN RE WINSTON CAPITAL, LLC, ET AL., PETITIONERS-APPELLANTS,
v.
A. ABADIAM, ET AL., RESPONDENTS-RESPONDENTS.



Judgment, Supreme Court, New York County (Alice Schlesinger, J), entered September 8, 2008, dismissing the petition brought pursuant to CPLR article 52 seeking an order canceling the sheriff's levy and voiding the execution notices with respect to apartment 6X at 400 Central Park West and apartment 18X at 392 Central Park West, unanimously reversed, on the law, without costs, the petition reinstated and the matter remanded for further proceedings consistent herewith.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Catterson, Acosta, Degrasse, Abdus-Salaam, JJ.

107466/08

In this special proceeding to prevent execution against properties and rents subject to a mortgage, petitioners established their prima facie entitlement to judgment as a matter of law by demonstrating their prior, recorded mortgage against the subject apartments and rents derived therefrom (see Dime Sav. Bank of N.Y. v Roberts, 167 AD2d 674, 675-676 [1990], lv dismissed 77 NY2d 939 [1991]). In opposition, respondents raised a triable issue as to petitioners' good faith in entering into the mortgage, including facts suggesting that petitioner mortgage broker, Winston Capital, LLC, and its general counsel participated with petitioner judgment debtor in a sham conveyance of an apartment to the judgment debtor's wife (see Debtor and Creditor Law § 273-a). Given the existence of genuine factual disputes that could not be resolved on the papers, Supreme Court, rather than dismissing the proceeding, should have ordered disclosure and a trial (see e.g. People v Zymurgy, Inc. 233 AD2d 178 [1996]; Matter of General Motors Acceptance Corp. v Norstar Bank of Hudson Val., 156 AD2d 876 [1989]; CPLR 5239).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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