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CONVEYANCES OF REAL PROPERTY SHOULD HAVE BEEN SET ASIDE AS FRAUDULENT PURSUANT TO THE DEBTOR-CREDITOR LAW; RELATED AFFIRMATIVE DEFENSES BASED UPON UNSUPPORTED CONCLUSIONS OF LAW SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined conveyances of property should have been set aside as fraudulent and the related affirmative defenses based upon unsupported conclusions of law should have been dismissed:

… [T]he plaintiff submitted … a copy of the deed and transfer documents regarding the properties at issue, which demonstrated that conveyances of the properties were made after the underlying action was commenced and without fair consideration. The plaintiff also submitted evidence that a judgment was docketed against [defendants] and that they failed to satisfy the judgment. With respect to the element of fair consideration, the deed and transfer documents reflect that no money or a nominal fee of ten dollars was paid for the defendants’ properties. Therefore, the plaintiff established her prima facie entitlement to summary judgment on the first cause of action to the extent that it seeks to set aside the conveyances of the properties pursuant to former section 273-a of the Debtor and Creditor Law … . …

The Supreme Court … should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3211(b) to dismiss the affirmative defenses insofar as the affirmative defenses pertain to Debtor and Creditor Law former § 273-a. CPLR 3211(b) authorizes a plaintiff to move to dismiss a defendant’s affirmative defense on the ground that it is without merit … [T]he affirmative defenses … proffered no supporting facts and merely pleaded conclusions of law. Diaz v 297 Schaefer St. Realty Corp., 2021 NY Slip Op 03825, Second Dept 6-16-21

 

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