Summary
In Neilson v. Sal Martorano, Inc., 36 A.D.2d 625, 319 N YS.2d 480 (2d Dep't 1971) the plaintiff asserted in the complaint and in motions papers that the non-resident defendant was the sister of one of the New York defendants, and that this New York defendant had made certain specific fraudulent conveyances of property to the non-resident defendant.
Summary of this case from Socialist Workers Party v. Attorney General of U.S.Opinion
February 8, 1971
In an action, inter alia, to set aside an alleged fraudulent conveyance of land and to recover damages for other alleged fraudulent acts, defendant Perez appeals from an order of the Supreme Court, Nassau County, dated March 10, 1970, which denied her motion to dismiss the complaint as against her on the ground of lack of personal jurisdiction. Order affirmed, with $10 costs and disbursements to plaintiff. Appellant's time to answer the complaint is extended until 20 days after entry of the order to be made hereon. In September and October, 1965, during the pendency of a wrongful death action commenced by plaintiff against the defendant corporation and defendant Salvatore Martorano, the corporation's sole stockholder, the corporation conveyed an improved parcel of land to defendant Caroline Martorano, the wife of defendant Salvatore Martorano, executed and delivered a mortgage on another parcel of land to defendant Perez, defendant Salvatore Martorano's sister, and also gave her a chattel mortgage on a crane. In 1969, in that action, plaintiff recovered a judgment against the defendant corporation and defendant Salvatore Martorano, but execution thereon against the corporation was returned unsatisfied. In 1970, plaintiff, attacking the above transfers as fraudulent, commenced this action to set aside the conveyance to defendant Caroline Martorano and to recover from defendant Perez the moneys allegedly paid to her by the defendant corporation in satisfaction of the real property and chattel mortgages. The causes of action directed against defendant Perez allege that she gave no consideration to the defendant corporation for the mortgages. The summons and complaint were served upon her personally in Florida and she moved pursuant to CPLR 3211 (subd. [a], par. 8) to dismiss those causes of action on the ground of lack of personal jurisdiction, alleging that she had been a domiciliary of Florida for more than 13 years and that she had neither appeared in New York nor executed any papers in New York in connection with the mortgages. In our opinion, plaintiff's assertion in his complaint and moving papers that defendant Perez had not paid any consideration for the mortgages thrust upon her the burden of disclosing, with respect to these intra-family transactions, the nature of the consideration, if any, given by her. Having totally failed to make that disclosure, defendant Perez's motion was properly denied, as facts tending to prove her participation in fraudulent conveyances within New York, through the defendant corporation and defendant Salvatore Martorano, were thus shown (Debtor and Creditor Law, § 273-a; CPLR 302, subd. [a], par. 2). A trier of the facts could find that the defendant Perez conspired with her brother to effect fraudulent conveyances, that he acted as her agent in preparing and recording the mortgages and in the payment to her in satisfaction of the mortgages, and that those acts therefore constituted tortious acts in New York. Rabin, P.J., Hopkins, Latham, Shapiro and Brennan, JJ., concur.