Meltzer, Lippe, Goldstein & Breitstone, LLP (Schlissel
Ostrow Karabatos, PLLC, Garden City, NY [Arnold S. Klein,
Jeanine M. Rooney, Stephen W. Schlissel, and Lewis S.
Meltzer], of counsel), for appellants.
Fitzpatrick LLP, New York, NY (David Kuehn and Donald J.
Carbone of counsel), for respondent.
REINALDO E. RIVERA, J.P. L. PRISCILLA HALL SHERI S. ROMAN
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to set aside a conveyance of funds as fraudulent under
the Debtor and Creditor Law, the defendants Meltzer Rosenberg
Development, LLC, Lewis S. Meltzer, Bernard Rosof, Bette
Ganz, Thomas Palmieri, S & J Enterprises, L.P., Carol
Reichers, Gary Meltzer, Paul Bermanski, Sheldon Goldstein,
DML Consultants, LLC, doing business as DML Consulting, LLC,
Sharon Meltzer, David Weiss, Gary Meltzer, as Trustee of the
Carli Pearl Meltzer Trust, and Gary Meltzer, as Trustee of
the Remi Dylan Meltzer Trust, appeal, as limited by their
brief, from (1) so much of an order of the Supreme Court,
Suffolk County (Pines, J.), dated July 21, 2014, as granted
those branches of the plaintiff's motion which were for
summary judgment on its causes of action pursuant to Debtor
and Creditor Law §§ 273 and 274 insofar as asserted
against them, as determined that the plaintiff was entitled
to attorneys' fees, and as denied that branch of their
cross motion which was pursuant to CPLR 3211(a)(1) to dismiss
the causes of action pursuant to Debtor and Creditor Law
§§ 273 and 274 insofar as asserted against them,
(2) so much of an order of the same court dated December 23,
2014, as awarded the plaintiff attorneys' fees in the sum
of $11, 650 insofar as against them, and (3) so much of a
judgment of the same court entered April 27, 2015, as
directed them to pay certain funds to the plaintiff pursuant
to the principle of joint and several liability.
that the appeals from the orders are dismissed; and it is
further, ORDERED that the judgment is modified, on the law,
by deleting the provision thereof imposing joint and several
liability, and substituting therefor a provision imposing
several liability, and by deleting the provision thereof
imposing judgment against the defendant Lewis S. Meltzer in
the sum of $12, 435, consisting of attorneys' fees in the
sum of $11, 650 and costs and disbursements in the sum of
$785, and substituting therefor a provision imposing judgment
against that defendant in the sum of $1, 492.20; as so
modified, the judgment is affirmed insofar as appealed from,
with one bill of costs payable to the plaintiff.
appeal from the intermediate orders must be dismissed because
the right of direct appeal therefrom terminated with the
entry of the judgment in the action (see Matter of
Aho, 39 N.Y.2d 241, 248). The issues raised on the
appeals from the orders are brought up for review and have
been considered on the appeal from the judgment (see
2005, the plaintiff entered into a contract to purchase real
estate from nonparty 214 Wall Associates, LLC (hereinafter
214 Wall), for the sum of $1, 750, 000. By a survival
agreement dated June 21, 2006, the plaintiff and 214 Wall
agreed, inter alia, that certain potential claims of each
party would survive the closing. By a guaranty executed in
July 2006, the appellants, as members of 214 Wall, agreed to
guaranty "the payment and performance of all obligations
of [214 Wall] under the Survival Agreement[, ]" agreed
that they "shall not be released by any act or thing
which might... be deemed a legal or equitable discharge of a
guarantor or surety" and "expressly waive[d] and
surrender[ed] any defense to its liability hereunder."
The appellants also agreed to payment of attorneys' fees,
should the plaintiff be required to bring legal action to
enforce the guaranty, and stated that they were each
severally liable based on their "respective
percentages" as established in an annexed schedule.
the plaintiff commenced an action against 214 Wall for its
nonperformance of certain obligations pursuant to the real
estate conveyance. After a jury trial, a judgment was
rendered in favor of the plaintiff in the amount of $133,
204.34, and a second judgment in the amount of $179, 251.42
was also rendered in favor of the plaintiff for its
litigation expenses. The plaintiff, having only received $60,
144 against the main judgment and $74, 915.40 against the
expenses judgment, commenced this action against, among
others, the appellants, demanding enforcement of the guaranty
and the recovery of funds distributed to the appellants by
fraudulent conveyances pursuant to, inter alia, Debtor and
Creditor Law §§ 273 and 274, as well as
attorneys' fees. In its motion for summary judgment on
those causes of action, the plaintiff alleged that the
appellants were jointly and severally liable for all
expenses, including the attorney's fees. The appellants
cross-moved, pursuant to CPLR 3211(a)(1), to dismiss the
causes of action pursuant to Debtor and Creditor Law
§§ 273 and 274 insofar as asserted against them.
The Supreme Court granted the plaintiff's motion and
denied the appellants' cross motion.
plaintiff made a prima facie showing that it was entitled to
summary judgment on its fraudulent conveyance causes of
action pursuant to Debtor and Creditor Law §§ 273
and 274 insofar as asserted against the appellants, by
submitting evidence that the transfers of proceeds from the
sale of the property, made by 214 Wall to the appellants,
rendered 214 Wall insolvent and were made without fair
consideration. In opposition, the appellants failed to
establish that they provided fair consideration within the
meaning of the Debtor and Creditor Law. The Supreme Court
therefore properly granted those branches of the
plaintiff's motion which were for summary judgment on
those causes of action insofar as asserted against the
appellants (see American Panel Tec v Hyrise, Inc.,
31 A.D.3d 586, 588; Laco X©Ray Sys. v
Fingerhut, 88 A.D.2d 425, 433; see generally GTF
Mktg. v Colonial Aluminum Sales, 66 N.Y.2d 965, 967,
citing CPLR 3212[b] and Zuckerman v City of New
York, 49 N.Y.2d 557, 562).
because the guaranty limited the liability of the appellants
to "the amount of money distributed to such [appellant]
by [214 Wall] in connection with the sale of the Premises,
" and the plaintiff presented no evidence of an intent
by the appellants to defraud, it was improper for the Supreme
Court to impose joint and several liability rather than just
several liability on the appellants (see Farm Stores v
School Feeding Corp., 102 A.D.2d 249, 255, affd in
part 64 N.Y.2d 1065).
also proper for the Supreme Court to grant that branch of the
plaintiff's motion which was for summary judgment on its
cause of action for attorneys' fees pursuant to the
language of the guaranty (see Yellow Book of N.Y., L.P. v
Cataldo, 81 A.D.3d 638, 640; see generally GTF Mktg.
v Colonial Aluminum Sales, 66 N.Y.2d at 967). However,
as the appellants correctly contend, although the court
correctly directed judgment against each appellant severally,
it failed to limit the liability of the appellant Lewis S.
Meltzer to his percentage interest in 214 Wall. The
attorneys' fees attributed to him should be calculated,
as stated in the guaranty, based on his "respective
percentage" share, rather than a full share, as imposed
by the court (see Yellow Book of N.Y., L.P. v
Cataldo, 81 A.D.3d at 640).
appellants' remaining contentions are without merit.
RIVERA, J.P., HALL, ROMAN and ...