Opinion
January 11, 2000
Order, Supreme Court, New York County (Barry Cozier, J.), entered September 23, 1998, which, to the extent appealed and cross-appealed from, granted the motion of plaintiffs to modify the order, Supreme Court, New York County (Walter Schackman, J.), entered September 10, 1996, which, inter alia, pursuant to Debtor and Creditor Law § 273, set aside as fraudulent a conveyance of $100,000 from defendant Business Computing International, Inc. (BCI) to defendant-appellant Berman, by directing that Berman pay the money directly to plaintiffs, rather than return it to BCI, and denied plaintiffs' application for post-judgment interest, unanimously affirmed, without costs.
Mark D. Risk for Plaintiffs-Respondents-Appellants.
James Klatsky for Defendant-Appellant-Respondent.
SULLIVAN, J.P., MAZZARELLI, WALLACH, RUBIN, ANDRIAS, JJ.
The previous order of the Supreme Court directed Berman to return to BCI some $100,000 fraudulently conveyed to him by BCI. The court properly modified such order by directing that the money be paid directly to plaintiffs, who commenced this action both derivatively as shareholders and as individual claimants. Direct payment to plaintiffs, the sole judgment creditors of the now defunct BCI, did not defeat any priority held by stockholders and is a recognition of the realities of the situation, preventing unnecessary circuitry and hardship (see, Geltman v. Levy, 11 A.D.2d 411, 412-413).
By its own terms, the order directing Berman to return the $100,000 to BCI did not constitute a money judgment subject to post-judgment interest pursuant to CPLR 5003. Nor was a money judgment available absent a demonstration that Berman had disposed of the money (see, Marine Midland Bank v. Murkoff, 120 A.D.2d 122, 132-133, appeal dismissed 69 N.Y.2d 875; Fed. Deposit Ins. Corp. v. Heilbrun, 167 A.D.2d 294).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.