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Conveyance from Mother to Son Not Made in “Good Faith” and Therefore Was Constructively Fraudulent

In a full-fledged opinion by Justice Tom, the First Department determined that a conveyance of an apartment from mother to son, after an arbitration award against the mother, was not done in “good faith” and therefore constituted a constructively fraudulent conveyance under Debtor and Creditor Law sections 273-a and 278:

The Debtor and Creditor Law identifies two indicia of “fair consideration” for conveyed property: the adequacy of what is given in exchange for it and “good faith.” With regard to value, § 272(a), governing a conveyance made in exchange for the property, provides for the receipt of something that is “a fair equivalent therefor,” and § 272(b), governing an antecedent debt or present advance, applicable herein, provides for an “amount not disproportionately small as compared with the value of the property.” * * *

“Fair consideration” under Debtor and Creditor Law § 272 is not only a matter of whether the amount given for the transferred property was a “fair equivalent” or “not disproportionately small,” which the parties vigorously dispute, but whether the transaction is made “in good faith,” an obligation that is imposed on both the transferor and the transferee … . The determination of whether such obligation has been met is one that rests on the circumstances of the individual matter … . Sardis v Frankel, 2014 NY Slip Op 00080, 1st Dept 1-7-14

 

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