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Mirage Limousine Service, Inc v. Wendy Goldin

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


February 9, 2012

MIRAGE LIMOUSINE SERVICE, INC.,
APPELLANT,
v.
WENDY GOLDIN, KENNETH I. DEUTSCH AND DEUTSCH REALTY,
RESPONDENTS.

Appeal from a judgment of the District Court of Nassau County, First District (Angelo A. Delligatti, J.), entered December 8, 2009.

Mirage Limousine Serv., Inc. v Goldin

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2012

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is modified by providing that so much of the judgment as dismissed the action against defendant Wendy Goldin is vacated and by directing that judgment be entered against defendant Wendy Goldin in the principal sum of $3,640; as so modified, the judgment is affirmed, without costs.

On March 6, 2007, plaintiff obtained a commercial claims judgment in the principal sum of $3,640 against Prime Marketing, Inc. (Prime Marketing) on the merits, and against Prime Metal Manufacturing (Prime Metal) by default (Case Number 1). On March 27, 2007, defendants Wendy Goldin and Kenneth I. Deutsch entered into a stipulation of settlement (the Stipulation), pursuant to which they agreed to pay plaintiff $1,223.34 on June 30, 2007, $1,223.34 on July 30, 2007, and $1,223.34 on August 30, 2007 in settlement of Case Number 1. The Stipulation further provided, among other things, that in the event of a default of payment thereunder, the March 6, 2007 judgment would be reinstated, minus any payments made. No payments were made under the Stipulation and, after plaintiff sought to levy on the judgment, the sheriff's levy of execution was returned unpaid. Notations on the levy of execution indicated that an employee at JP Morgan Chase had located customer accounts for one or both of the defendants in Case Number 1, which accounts had been closed on November 21, 2006 and on June 5, 2007.

Plaintiff then brought this commercial claims action to recover the judgment amount in Case Number 1 from Goldin, Deutsch and Deutsch Realty. On the commercial complaint form, plaintiff alleged that defendants had collectively transferred funds to avoid payment of a court-ordered judgment. The unrefuted evidence at the non-jury trial showed that Goldin was the president of Prime Metal and Deutsch was the president of Prime Marketing. It further showed that, prior to the date of the Stipulation, Prime Metal had contracted to sell its assets, and that, after signing the Stipulation, Goldin instructed the purchaser of Prime Metal's assets to make all future payments either to herself or to defendant Deutsch Realty, rather than to Prime Metal. It also showed that, subsequently, Prime Metal's purchaser sent Deutsch Realty a check in the sum of $7,500, marked "Final Payment." Following the trial, the District Court dismissed the action upon a finding that plaintiff had failed to prove its cause of action.

Upon a review of the record, we find that plaintiff proved its entitlement to an award of compensatory damages as against defendant Goldin (see generally 30 NY Jur 2d, Creditors' Rights and Remidies § 445; see also Levin v Kitsis, 82 AD3d 1051 [2011]). Thus, the District Court's dismissal of the action as against defendant Goldin failed to render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1807-A). We, however, further find that the dismissal of the action as against defendants Deutsch and Deutsch Realty was supported by the record. Accordingly, the judgment is modified by providing that so much of the judgment as dismissed the action against defendant Wendy Goldin isvacated and by awarding judgment against defendant Wendy Goldin in the principal sum of $3,640.

Nicolai, P.J., Molia and Iannacci, JJ., concur. Decision Date: February 09, 2012

20120209

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