MARINE MIDLAND BANK v. Risk Enterprise Management Limited, et al., Defendants.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

MARINE MIDLAND BANK, etc., Plaintiff-Respondent-Appellant, v. ZURICH INSURANCE COMPANY, et al., Defendants-Appellants-Respondents. Risk Enterprise Management Limited, et al., Defendants.

Decided: July 08, 1999

SULLIVAN, J.P., WILLIAMS, RUBIN and ANDRIAS, JJ. Neil Merkl, for plaintiff-respondent-appellant. Richard Mancino, for defendants-appellants-respondents.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered December 12, 1997, which, to the extent appealed and cross-appealed from, denied defendants' motion to dismiss the complaint except to the extent of striking the demand for imposition of a constructive trust, modified, on the law, to reinstate plaintiff's demand for imposition of a constructive trust and affirmed insofar as it denied dismissal of the complaint on grounds other than lack of standing;  the appeal from that part of the order denying the branch of defendant's motion for dismissal premised upon plaintiff's alleged lack of standing to sue, dismissed as academic, all without costs.

 We agree with plaintiff that any question as to its standing to sue as an assignee has been rendered academic by the express assignment to it of the fraudulent conveyance causes of action, rendering it clear beyond cavil that “the party seeking relief has a sufficiently cognizable stake in the outcome” (see, Community Bd. 7 v. Schaffer, 84 N.Y.2d 148, 155, 615 N.Y.S.2d 644, 639 N.E.2d 1).   In any case, were we to reach the substance of the question of standing, we would find that plaintiff had standing from the outset (see, Julien J. Studley, Inc. v. Lefrak, 66 A.D.2d 208, 214, 412 N.Y.S.2d 901, affd. 48 N.Y.2d 954, 425 N.Y.S.2d 65, 401 N.E.2d 187).

 Dismissal of plaintiff's fraudulent conveyance causes was properly denied insofar as it was sought for insufficiently detailed pleading.   In pleading intentionally fraudulent conveyance (Debtor and Creditor Law § 276), plaintiff alleged the overall fraudulent scheme in detail (see, Ambassador Factors v. Kandel & Co., 215 A.D.2d 305, 307, 626 N.Y.S.2d 803), and fraudulent intent is fairly inferred from such details (cf., 125 Assocs. v. Cralin Trading Assocs., 196 A.D.2d 630, 601 N.Y.S.2d 196).   Plaintiff was, therefore, in compliance with CPLR 3016(b).

We also find that, under the circumstances of this case, plaintiff's demand for imposition of a constructive trust as a remedy for the alleged fraudulent conveyances should not have been stricken (see, Debtor and Creditor Law § 279 [d];  cf., Marine Midland Bank v. Murkoff, 120 A.D.2d 122, 508 N.Y.S.2d 17, appeal dismissed 69 N.Y.2d 875, 514 N.Y.S.2d 1029, 507 N.E.2d 322).   We have considered the parties' remaining requests for affirmative relief and find them unavailing.

In Home Insurance Company's appeal in a related matter, (Marine Midland Bank v. Home Insurance Co., 263 A.D.2d 374, 693 N.Y.S.2d 550, released simultaneously herewith), this court affirmed the denial of Home's motion to dismiss.   While I dissented, concluding that dismissal was warranted on the ground that the order of the New Hampshire Insurance Department approving the recapitalization was entitled to full faith and credit, that issue is not before us on this appeal.


All concur except SULLIVAN, J.P., who concurs in a memorandum as follows:

Copied to clipboard