Opinion
30553/2009.
Decided February 8, 2011.
Morelli Ratner, PC, by Adam E. Deutsch, Esq., New York, New York, for the Plaintiff.
Thomas Torto, Esq., New York, New York, for the Defendants.
Papers Numbered
Notice of Motion — Affidavits — Exhibits........... 1—4 Notice of Cross Motion — Affidavits — Exhibits..... 5—7 Reply Affidavits................................... 8—10This is an action pursuant to Debtor and Creditor Law article 10 to set aside as fraudulent the conveyance of certain real property. In December 2001, plaintiff commenced an action in the Civil Court, Kings County, against defendant Deland Eng, under the Labor Law, to recover damages for personal injuries he allegedly sustained while working on property owned by Deland Eng, located at 84-51 Kneeland Avenue, in Elmhurst, in Queens County, New York.
On April 28, 2006, Deland Eng executed a deed transferring ownership of the subject property to his mother, defendant Big Lin Eng. On May 11, 2006, the deed was recorded.
On January 17, 2008, the personal injury action resulted in the entry of a judgment for plaintiff in the sum of $2,176,216.37, which Deland Eng subsequently appealed to the Supreme Court, Appellate Term. In November 2009, plaintiff commenced a special proceeding to set aside the conveyance, alleging claims under Debtor and Creditor Law sections 273, 273-a, 275, 276, and 276-a. By order dated July 29, 2010, the Supreme Court, Appellate Term reversed the money judgment of Civil Court, Kings County, entered on January 17, 2008 and granted a new trial.
Defendants have moved for summary judgment dismissing the complaint on the ground that the action is premature as a result of a prior order of the Supreme Court, Appellate Term ( Hu v Eng, App Term, 2d, 11th, 13th Jud Dists, July 29, 2010). Plaintiff has made a cross motion, seeking, pursuant to CPLR 6301 and 6311, a preliminary injunction enjoining defendant Big Lin Eng from transferring, dissipating, assigning, conveying, selling, or otherwise disposing of certain real property pending determination of this action and a related action, Hu v Eng (index No. 300124/05) in the Civil Court, Kings County, and for a temporary restraining order, pursuant to CPLR 6313 pending determination of the request for a preliminary injunction.
Defendants established their prima facie entitlement to judgment as a matter of law that the second cause of action to set aside the subject conveyance as fraudulent under Debtor and Creditor Law section 273-a should properly be dismissed as premature. Debtor and Creditor Law section 273-a provides:
Every conveyance made without fair consideration when the person making it is a defendant in an action for money damages or a judgment in such an action has been docketed against him, is fraudulent as to the plaintiff in that action without regard to the actual intent of the defendant if, after final judgment for the plaintiff, the defendant fails to satisfy the judgment. [Emphasis added]
The existence of an unsatisfied judgment is an essential element of this cause of action ( see, Frybergh v Weissman, 145 AD2d 531; Cohan v Misthopoulos, 118 AD2d 530 [2nd Dept. 1986]). Here, there is no longer any money judgment in favor of plaintiff and against Deland Eng as a result of the Supreme Court, Appellate Term's July 29, 2010 order reversing the money judgment of the Civil Court, Kings County, entered on January 17, 2008. Additionally, plaintiff concedes that his claim under Debtor and Creditor Law section 273-a is premature.
With respect to plaintiff's remaining causes of action under Debtor and Creditor Law sections 273, 275, 276, and 276-a, defendants failed to meet their prima facie burden. In support of their motion for summary judgment, defendants did not address the aforementioned causes of action. Moreover, defendants' additional contentions that they are entitled to summary judgment dismissing plaintiff's claims under Debtor and Creditor Law sections 273, 275, 276, and 276-a are improperly raised for the first time in defendants' reply papers and, therefore, the Court declines to consider them ( see, Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744 [2nd Dept. 2001]).
Turning to plaintiff's cross motion seeking, pursuant to CPLR 6301 and 6311, a preliminary injunction enjoining Big Lin Eng from transferring, dissipating, assigning, conveying, selling, or otherwise disposing of the subject property until such time that a determination of this action and the underlying personal injury action is made, this Court finds that plaintiff is not entitled to such relief.
The law is well-settled that to prevail on a motion for a preliminary injunction, the movant bears the burden of demonstrating by clear and convincing evidence: (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the moving party's position (CPLR 6301; see, EdCia Corp. v McCormack , 44 AD3d 991 [2nd Dept. 2007]; City of Long Beach v Sterling Am. Capital, LLC , 40 AD3d 902 [2nd Dept. 2007]; Merscorp, Inc. v Romaine, 295 AD2d 431 [2nd Dept. 2002]).
The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court ( see, Masjid Usman, Inc. v Beech 140, LLC , 68 AD3d 942 [2nd Dept. 2009]). Here, plaintiff's counsel asserts that denial of injunctive relief would render a final judgment in the plaintiff's favor in the underlying personal injury action ineffectual because Deland Eng's remaining assets, after transferring the subject property to Big Lin Eng, are insufficient to pay such a judgment. However, no financial statements or other evidence were submitted to substantiate these claims. In addition, the record is devoid of any evidence indicating that Big Lin Eng has transferred, is about to transfer, or has threatened to transfer the subject property. These bare, conclusory allegations are insufficient to satisfy plaintiff's burden of demonstrating irreparable harm ( see, Kurzban Son v Board of Educ. of City of NY, 129 AD2d 756 [2nd Dept. 1987]). Moreover, the plaintiff has not shown that money damages will not be an adequate remedy in the event that he is successful on the underlying personal injury action ( see, Family-Friendly Media, Inc. v Recorder Tel. Network , 74 AD3d 738 [2nd Dept. 2010]). Consequently, this Court need not reach plaintiff's remaining contentions.
In view of the foregoing, the branch of plaintiff's cross motion seeking a temporary restraining order pursuant to CPLR 6313, pending determination of plaintiff's request for a preliminary injunction, is denied as moot.
Accordingly, defendants' motion for summary judgment dismissing the complaint is granted only to the extent that the cause of action under Debtor and Creditor Law section 273-a is dismissed as premature without prejudice to renewal in the event that plaintiff becomes a judgment creditor by prevailing on the underlying personal injury action against Deland Eng pending in the Civil Court, Kings County. In all other respects, defendants' summary judgment motion is denied.
The cross motion by plaintiff for a preliminary injunction enjoining Big Lin Eng from transferring, dissipating, assigning, conveying, selling, or otherwise disposing of certain real property pending determination of this action and the underlying personal injury action is denied. In addition, that branch of plaintiff's cross motion seeking a temporary restraining order pending determination of his application for a preliminary injunction is denied.
The foregoing constitutes the decision, order, and opinion of this Court.