New York Supreme and/or Appellate Courts Appellate Division, First Department
January 10, 2012
ELAINE THOMPSON, PETITIONER-RESPONDENT,
MEL COOPER, ETC., RESPONDENT, IMPERIAL CAPITAL LLC, RESPONDENT-APPELLANT.
Thompson v Cooper
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.
Decided on January 10, 2012
Friedman, J.P., Sweeny, Acosta, Renwick, Abdus-Salaam, JJ.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered October 4, 2010, which denied respondent Imperial Capital LLC's motion to dismiss the petition for failure to state a cause of action, unanimously modified, on the law, to grant the motion as to the claim under Debtor and Creditor Law § 273, and to deem the petition amended to include a claim under Debtor and Creditor Law § 273-a, and otherwise affirmed, without costs.
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 , appeal dismissed 17 NY3d 769 ; Karr v Black, 55 AD3d 82, 86 , lv denied 11 NY3d 712 ).
However, the petition and the documentary evidence, including a money judgment in plaintiff's 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 ). 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 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 10, 2012
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