Opinion
No. 8631/2013.
2014-02-24
Clement PETROCELLI, Plaintiff, v. Santo PETROCELLI, Jr., Norman Fidelman, Petrocelli Electric Co., Inc., Allan Briteway Electrical Contractors, Inc., and Davidoff Malito & Hutcher LLP, Defendants.
The next issues to be decided in this court, assuming for the moment that collateral estoppel is no bar, are whether PEC has consolidated with or merged into ABES or conveyed, transferred, or otherwise disposed of all or substantially all of its assets to ABES. The conflicting allegations of the parties have created factual issues which cannot be resolved without a hearing. The problem is that Justice Rakower's written order dated September 3, 2013 scheduled a hearing in the turnover proceeding for October 8, 2013. Although the defendants' attorney informed her that their motion pending in Queens County would be recalendared, Justice Rakower decided to hear argument on the petition and cross motion before her anyway: “I do not intend to wait, counsel.” She then denied the defendants' cross motion and granted the petition to the extent of setting the matter down for a hearing. The petition raises the issues of whether PEC and ABES are “alter egos” and whether the transfers by PEC to ABES were fraudulent conveyances. This court has not been informed about whether those issues have already been heard and determined in the turnover proceeding. Since those issues duplicate to a certain extent the issues to be heard here, this court will not conduct a hearing until the hearing in the turnover proceeding is either stayed pending a disposition here or concluded.