Opinion
2002-01697
Argued February 14, 2003.
March 10, 2003.
In a purported proceeding pursuant to Debtor and Creditor Law article 10 to set aside a transfer as fraudulent, ALA Associates and Sarah L. Hollinger appeal from a judgment of the Supreme Court, Nassau County (Joseph, J.), entered January 10, 2002, which, upon an order of the same court dated October 15, 2001, granting the petition, is in favor of the petitioner and against them in the principal sum of $551,687.42.
James R. Froccaro, Jr., Port Washington, N.Y., for appellants.
Bainton McCarthy, LLC, Central Islip, N.Y. (John G. McCarthy and Irene M. Hurtado of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the proceeding is converted to an action to set aside a transfer as fraudulent, the order to show cause is deemed to be the summons, and the petition is deemed to be the complaint (see CPLR 103[c]); and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The petitioner demonstrated by clear and convincing evidence that Andre Hollinger's 1997 transfer of his partnership interest in ALA Associates to his wife Sarah L. Hollinger was a fraudulent conveyance (see Debtor and Creditor Law § 276; Marine Midland Bank v. Murkoff, 120 A.D.2d 122; compare MFS/Sun Life Trust-High Yield Series v. Van Dusen Airport Servs. Co., 910 F. Supp. 913). In opposition to the petitioner's prima facie showing of entitlement to judgment as a matter of law, the appellants were required to demonstrate the existence of a triable issue of fact. The appellants failed to do so, and thus, judgment was properly entered in the petitioner's favor for the relief requested in the petition (see CPLR 409[b]; Debtor and Creditor Law § 276; Zuckerman v. City of New York, 49 N.Y.2d 557; Matter of Friends World College v. Nicklin, 249 A.D.2d 393; Marine Midland Bank v. Murkoff, supra).
The appellants' remaining contentions are raised for the first time on appeal and, in any event, are without merit.
SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur.