Opinion
April 4, 1986
Appeal from the Supreme Court, Onondaga County, Lawton, J.
Present — Dillon, P.J., Callahan, Doerr, Pine and Schnepp, JJ.
Order unanimously affirmed, without costs. Memorandum: Although Special Term erroneously imposed upon plaintiff the burden of showing by clear and convincing evidence that petitioner and defendants were parties to a fraudulent conveyance, there was no showing by plaintiff by any standard of proof of an "actual intent" by defendants under Debtor and Creditor Law § 276 to "hinder, delay, or defraud" it or that the conveyance was made without a fair consideration and rendered the transferor insolvent under Debtor and Creditor Law § 273. In the face of the proof that the transfer of funds constituted a loan that was repaid, plaintiff failed to sustain its burden under CPLR 6223 (b) of establishing that the conveyance was a fraudulent scheme concocted to hinder, delay or defraud it, as a known creditor of defendants, and to prevent satisfaction of a contemplated judgment (see, Merrill Lynch Futures v. Kelly, 585 F. Supp. 1245, 1258; Laco X-Ray Sys. v. Fingerhut, 88 A.D.2d 425, 431, appeal dismissed 58 N.Y.2d 826; 7A Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 6223.05), or that it was made without a fair consideration. Moreover, plaintiff did not establish that the transferee of the conveyance was a gratuitous donee and in the absence of such proof the trial court's determination not to impose a constructive trust should not be disturbed (see, McCall v. Town of Middlebury, 52 A.D.2d 736).