Opinion
October 27, 1959
Fields, Zimmerman, Skodnick Segall ( Ruth Schoonmaker of counsel), for defendants.
Murray Seeman and Jerome Plotner for plaintiff.
In an action to set aside an alleged fraudulent conveyance of real property by the defendant Takabi Corp. to the defendant 36-25 Parsons Realty Corp., said defendants move for summary judgment dismissing the complaint, principally upon the ground that the plaintiff has failed to allege that said conveyance was made when the defendant Takabi Corp. was insolvent, or the said conveyance rendered said defendant insolvent, or left it with insufficient assets to pay its obligations as said obligations matured.
Were this action based upon sections 271 Debt. Cred. and 273 Debt. Cred. of the Debtor and Creditor Law, the defendants would undoubtedly be correct in their contentions. This action, however, is predicated upon the claim that the conveyance was made with intent to defraud, which is governed by section 276 Debt. Cred. of the Debtor and Creditor Law. It was observed in Pattison v. Pattison ( 301 N.Y. 65, 73-74) that "A conveyance is fraudulent when the grantor, even though solvent, is motivated by an intent to hinder, delay or defraud his creditors". (Emphasis supplied.)
Under these circumstances, this action cannot be disposed of summarily upon the basis urged by the defendants. Their motion is accordingly denied, without prejudice to renewal if defendants are so advised, upon any other ground that may be available to them.
Submit order.