Among these "badges of fraud" are: a close relationship between the parties to the transfer; inadequate or no consideration; the transferor's knowledge of the creditor's claim; and retention of the property by the transferor after the conveyance (id.). In Machado v A. Canterpass, LLC (115 AD3d 652, 653-654 [2d Dept 2014]), the trial court granted the plaintiff's motion for summary judgment to set aside transfers of real property as fraudulent conveyances under the Debtor and Creditor Law. In affirming, the Appellate Division held that the "badges of fraud" extant in the case constituted clear and convincing evidence of intent to hinder, delay, or defraud the plaintiff's ability to collect on her claim against the defendant.

The defendants did not raise a triable issue of fact in opposition. Under these circumstances, the plaintiffs were entitled to summary judgment on the issue of liability on the cause of action pursuant to Debtor and Creditor Law former § 276 to set aside the conveyance of the subject property (seeMachado v. A. Canterpass, LLC, 115 A.D.3d 652, 653–654, 981 N.Y.S.2d 758 ; Kreisler Borg Florman Gen. Constr. Co., Inc. v. Tower 56, LLC, 58 A.D.3d 694, 696, 872 N.Y.S.2d 469 ). Finally, as the plaintiffs were entitled to summary judgment on the issue of liability on the Debtor and Creditor Law former § 276 cause of action, they also established their entitlement to summary judgment on the issue of liability on the twenty-first cause of action, which sought an award of attorney's fees pursuant to Debtor and Creditor Law § 276–a (see5706 Fifth Ave., LLC v. Louzieh, 108 A.D.3d 589, 591, 969 N.Y.S.2d 141 ; Kreisler Borg Florman Gen. Constr. Co., Inc. v. Tower 56, LLC, 58 A.D.3d at 696, 872 N.Y.S.2d 469 ).

The Supreme Court properly determined that the amended complaint stated a cause of action under Debtor and Creditor Law § 276 against the Swartz daughters. The amended complaint alleged that there were several "badges of fraud" that gave rise to an inference of the intent of Jerome Swartz and the Swartz daughters to hinder, delay, or defraud the plaintiff, including that the transfers were between family members, were for inadequate or no consideration, and were made after the matrimonial action had been commenced (see Machado v. A. Canterpass, LLC, 115 A.D.3d 652, 654, 981 N.Y.S.2d 758 ; Pen Pak Corp. v. LaSalle Natl. Bank of Chicago, 240 A.D.2d 384, 658 N.Y.S.2d 407 ). Contrary to the Swartz daughters' contention, the plaintiff sufficiently alleged that she is a creditor of Jerome Swartz (see Henry v. Soto–Henry, 89 A.D.3d 617, 618, 936 N.Y.S.2d 84 ; Debtor and Creditor Law § 270 ; see also Kasinski v. Questel, 99 A.D.2d 396, 397, 472 N.Y.S.2d 807 )

Although actual intent to hinder, delay or defraud within the meaning of former Debtor and Creditor Law § 276 "is ordinarily a question of fact of fact that cannot be resolved on summary judgment" (Shisgal v Brown, 21 A.D.3d 845, 847 [1st Dept 2005] [internal quotation marks and citation omitted]), courts grant summary judgment where the record is clear and convincing that the transfer was done with intent to "hinder, delay or defraud" (former Debtor and Creditor Law § 276; see e.g. 214 Knickerbocker LLC v Shou Pan, 217 A.D.3d 431, 433 [1st Dept 2023]; Machado v A. Canterpass, LLC, 115 A.D.3d 652, 653-654 [2d Dept 2014]; Dempster, 4 A.D.3d at 498; DillonvDean, 236 A.D.2d 360, 361 [2d Dept 1997], Iv dismissed 89 N.Y.2d 1085 [1997]; accord Matter of CIT Group/Commercial Servs., Inc. v160-09 Jamaica Ave. Ltd. Partnership, 25 A.D.3d 301, 303 [1st Dept 2006]).

Beneficiaries of divorce agreements have been permitted to reach retirement accounts, unlike the commercial creditors that were the subject of the cases Naheed cites. Thus, the plaintiffs are entitled to an order granting summary judgment on their fifth cause of action pursuant to Debtor Creditor Law § 276 (see, Machado v. A. Canterpass, LLC, 115 AD3d 652, 654 [2nd Dept. 2014; the defendant does not have a viable affirmative defense to this cause of action, as discussed below. THE BRANCH OF PLAINTIFFS' MOTION FOR AN ORDER GRANTING SUMMARY JUDGMENT DISMISSING DEFENDANT'S AFFIRMATIVE DEFENSES, AND THE CROSS-MOTION BY DEFENDANT FOR AN ORDER GRANTING SUMMARY JUDGMENT IN HER FAVOR DISMISSING THE COMPLAINT

These badges of fraud, coupled with Weston's "failure to proffer any legitimate explanation for the conveyances," establish Class TT's entitlement to a judgment setting the conveyances aside pursuant to DCL § 276. Machado v. A. Canterpass, LLC, 115 A.D.3d 652, 654 (2d Dept. 2014) (finding that presence of "badges of fraud" and "defendants' failure to proffer any legitimate explanation for the conveyances," rendered the "defendants' actual fraudulent intent [] readily inferable" entitling plaintiff to a judgment under Debtor and Creditor Law § 276). Indeed, I follow Justice Kornreich's holdings regarding the sufficiency of the fraudulent conveyance claims in the Class C Decision.

Plaintiff has demonstrated that the circumstances surrounding the post-2012 conveyances to Berkowitz are sufficient to infer actual fraudulent intent (see Machado v A. Canterpass, LLC, 115 AD3d 652, 654 [2d Dept 2014] [finding that the "'badges of fraud' and the defendants' failure to proffer any legitimate explanation for the conveyances" meant that "actual fraudulent intent is readily inferrable"]). There was a close relationship between Valoc and Berkowitz when the transfers were made because, as noted earlier, Berkowitz enjoyed total control over Valoc following Miller's death.

Fraudulent intent may be inferred from the allegation that the third-party defendants received the last of the Company's cash when, contractually and under the DCL, that money first should have been paid to Landlord. Machado v A. Canterpass, LLC, 115 AD3d 652, 654 (2d Dept 2014) (upon "defendants' failure to proffer any legitimate explanation for the conveyances, the defendants' actual fraudulent intent is readily inferrable, and the plaintiff is entitled to a judgment setting those conveyances aside under [DCL § 276]."); see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 (2009) ("CPLR 3016(b) is satisfied when the facts suffice to permit a 'reasonable inference' of the alleged misconduct."); Aozora Bank, Ltd. v J.P. Morgan Secs. LLC, 144 AD3d 440, 441 (1st Dept 2016) (complaint must include "sufficient facts to support the reasonable inference of fraud and scienter."). Porco may seek to set aside these conveyances so that he may be made whole on his claims against the Company.

That request is not, however, addressed in the notice of motion or elsewhere in the parties' submissions. In any event, the pleadings, as a whole, contain sufficient detail to apprise the defendant of the alleged particulars upon which the pleaded cause of action is purportedly based (seeWall Street Associates v. Brodsky , 257 AD2d 526, 528–31 [1st Dept. 1999] ; Pen Pak Corp. v. LaSalle Nat'l Bank of Chicago , 240 AD2d 384 [2d Dept 1997] ; Machado v. A. Canterpass, LLC , 115 AD3d 652, 653–54 [2d Dept 2014] ). Background

In opposition, respondents argue that there is no action against the respondents, other than Allstar, because the Underlying Judgment is against Allstar only. However, having found a fraudulent conveyance, both the transferor and the recipient of the money are proper defendants (Machado v A. Canterpass, LLC, 115 AD3d 652, 654 [2d Dept 2014] [granting summary judgment on fraudulent conveyance claim against transferor and recipient of transferred funds]). Respondents also argue that the transfers cannot be fraudulent if they occurred prior to the issuance of the Underlying Judgment.