Opinion
May 23, 1995
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
As the IAS Court explained, the State court judgment representing the debt in question adjudicated only plaintiff's contract claims. Plaintiff's fraud claim was severed for future adjudication and unlike a contract claim, would not be dischargeable in bankruptcy ( 11 U.S.C. § 523 [a] [2] [A]). Therefore it remains an open question whether plaintiff would have been able to prove such fraud in an adversary proceeding by a preponderance of the evidence (see, Grogan v Garner, 498 U.S. 279, 286 [under Bankruptcy Code]; cf., Simcuski v Saeli, 44 N.Y.2d 442, 452; Orbit Holding Corp. v Anthony Hotel Corp., 121 A.D.2d 311, 314 [clear and convincing evidence standard in State court]), "`but for'" defendants' failure to timely file therefor (Schimenti v Whitman Ransom, 208 A.D.2d 470). We note that a Bankruptcy Court can look behind the judgment and examine evidence beyond the State court record in determining dischargeability (In re Daley, 776 F.2d 834, 838, cert denied sub nom. Daley v Frank, 476 U.S. 1159).
Concur — Rosenberger, J.P., Ellerin, Rubin, Ross and Tom, JJ.