APEX REHABILITATION AND CARE CENTER v. BUTLER (2019)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, a creditor of the defendant's mother, commenced this action to set aside the alleged fraudulent conveyance of the mother's funds to the defendant, alleging that the transfer was made in an effort to avoid payment of a debt owed to the plaintiff by the mother.  The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.  The Supreme Court denied that branch of the motion, and the defendant appeals.

“When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff ․ ‘the benefit of every possible favorable inference’ ” (AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471, quoting Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511).  A court must “determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  see Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184;  Starr Indem. & Liab. Co. v. Global Warranty Group, LLC, 165 A.D.3d 1308, 1309, 87 N.Y.S.3d 635).

Contrary to the defendant's contentions, the allegations in the complaint sufficiently set forth causes of action to set aside an alleged fraudulent conveyance under the Debtor and Creditor Law. Moreover, while causes of action asserting actual intent to defraud must be pleaded in compliance with the heightened particularity requirements of CPLR 3016(b) (see Debtor and Creditor Law §§ 276, 276–a;  see generally Gaetano Dev. Corp. v. Lee, 121 A.D.3d 838, 840, 994 N.Y.S.2d 641), the plaintiff's allegations, inter alia, that the defendant, in an effort to frustrate the plaintiff's rights as a creditor, transferred assets belonging to the debtor to himself, without consideration and with knowledge that the entry of a money judgment against the debtor was imminent, were sufficient under the circumstances to satisfy CPLR 3016(b) (see e.g. Gateway I Group, Inc. v. Park Ave. Physicians, P.C., 62 A.D.3d 141, 150, 877 N.Y.S.2d 95).  Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

MASTRO, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.