United States District Court, E.D. New York
MEMORANDUM & ORDER
SANDRA L. TOWNES, District Judge.
Plaintiffs Analogic Corporation ("Analogic") and BK Medical Systems, Inc. ("BK") (collectively, "Plaintiffs") bring this diversity action against Gregory and Anie M. Manuelian (collectively, "Defendants"), alleging the fraudulent conveyance of an interest in real property. Plaintiffs now move for summary judgment as to their second claim for relief under New York Debtor and Creditor Law ("DCL") § 273. Defendants argue that this claim is time-barred. For the reasons set forth below, Plaintiffs' motion is granted.
The following facts are not in dispute unless otherwise indicated.
1. Criminal Scheme
Analogic, through its Danish subsidiary, manufactures diagnostic ultrasound systems for medical professionals. (56.1 Stmt. ¶ 2). These products are imported into the United States and distributed by BK, a subsidiary of the Danish company. (56.1 Stmt. ¶ 3). In 1980, BK retained Marquis Clearance Services Ltd. ("Marquis") as a customs broker for its imports. (56.1 Stmt. ¶ 12). An employee of Marquis, Gregory Manuelian ("Gregory") became a licensed customs broker in 1985, an officer of Marquis in 1993, and sole owner in 2006. (56.1 Stmt. ¶¶ 4-6). Gregory's role as a customs broker was to help clients "clear" goods through customs, which often included preparing paper or electronic submissions as well as calculating and paying taxes or duties for the clients' shipments. (56.1 Stmt. ¶ 7). Gregory, on behalf of Marquis, typically paid any duties and routine charges on the imported goods and then faxed an invoice to BK, listing the goods and pre-payments. (56.1 Stmt. ¶ 13). Based upon these invoices, BK reimbursed Marquis for the duties and paid the brokerage service fee. (56.1 Stmt. ¶ 14). Gregory would then mail BK a copy of the invoice and what purported to be a copy of the customs form filed with the appropriate federal agency. (56.1 Stmt. ¶ 15).
In 1996, the United States began phasing out duties on such medical equipment exported from Denmark, and by 1999 these products could be imported duty free. (56.1 Stmt. ¶ 16). Exploiting this change, Gregory engaged in a scheme from 1996 through 2006 to defraud BK by representing - through false invoices and customs forms - that Marquis was paying duties that were, in reality, no longer due. (56.1 Stmt. ¶¶ 17-19). During the course of this scheme, Gregory induced BK to pay $1, 188, 886.97 to Marquis. (56.1 Stmt. ¶ 25). From 1996 through 2008, Gregory personally withdrew and depleted the money he stole from Plaintiffs. (56.1 Stmt. ¶ 26).
2. Prior Litigation
In December 2006, Plaintiffs discovered the irregularities during a review of export costs and thereafter contacted federal criminal authorities. (56.1 Stmt. ¶ 27). In October 2008, Gregory was arrested and indicted in the United States District Court for the District of Massachusetts on eight counts of wire fraud and four counts of forgery of customs forms. Gregory pleaded guilty to all counts. (56.1 Stmt. ¶ 29). In addition to a term of imprisonment, Gregory was ordered to make restitution of $1, 188, 886.97 plus interest to Analogic and to pay an assessment of $1, 200. (56.1 Stmt. ¶¶ 31, 32). Gregory surrendered to custody in March 2010 and in June 2010, the court denied his motion to alter the judgment. (56.1 Stmt. ¶¶ 34, 35). Plaintiffs claim that Gregory has failed to make any restitution, but for $88, 000 turned over from his IRA account; Gregory asserts that he has made $95, 451 available from his assets. (56.1 Stmt. & Counterstmt. ¶ 36).
Plaintiffs subsequently commenced an action in this Court seeking to hold Marquis liable for losses due to the crimes committed by Gregory, and on September 7, 2011, the Court granted a default judgment against Marquis for $1, 248, 103.30. (See 10-CV-3801 (SJ) (Docket Nos. 16, 17)). To date, no part of that judgment has been paid.
3. The Property
On September 14, 1989, Gregory took title to real property located at 19 Oaktree Lane, Manhasset, New York (the "Property"), which included a single family house. (56.1 Stmt. & Counterstmt. ¶ 44). On March 6, 2002, while conducting his scheme to defraud Plaintiffs, Gregory executed a deed purporting to convey the Property to his wife, Anie M. Manuelian ("Anie") and himself, as tenants by the entirety. (56.1 Stmt. ¶ 45). The deed was recorded, but not delivered to or accepted by Anie. (56.1 Stmt. ¶ 46). Indeed, Anie had no knowledge of the deed until September 2007, when Gregory told her about it in the wake of his arrest. (56.1 Stmt. ¶ 47).
At the time of transfer of interest to Anie, Gregory was insolvent or was thereby rendered insolvent. (56.1 Stmt. ¶ 51). Additionally, Gregory did not receive "fair consideration" as defined in DCL § 272 for his conveyance of an interest in the Property to Anie. (56.1 Stmt. ¶ 52). On May 12, 2011, Plaintiffs filed a transcript of the judgment against Gregory with the Nassau County Clerk and thereby acquired a lean on all real property located in that county in which Gregory has an interest. (56.1 Stmt. ¶ 42). As of 2010, the ...