FARKAS v. Bruce R. Farkas, Judgment Debtor.

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

Arlene C. FARKAS, Plaintiff-Appellant, v. Dolores B. D'OCA, a/k/a Dolores D. Farkas, Defendant-Respondent, Bruce R. Farkas, Judgment Debtor.

Decided: May 15, 2003

ANDRIAS, J.P., WILLIAMS, LERNER, FRIEDMAN and MARLOW, JJ. Michael I. Bernstein, for Plaintiff-Appellant. Eric A. Rosen, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered November 25, 2002, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, without costs.

The trial court properly dismissed the complaint upon the ground that plaintiff had failed to establish by clear and convincing evidence that the payments at issue, made by plaintiff's former husband, judgment debtor Bruce Farkas, to defendant while there were unpaid money judgments against him in plaintiff's favor, were fraudulent conveyances under either § 273 or § 273-a of the Debtor and Creditor Law. Defendant established her defense that she used the disputed funds for the support of the children she bore with Bruce Farkas and, accordingly, that such payments were made for “fair consideration.”   The trial court properly rejected plaintiff's claim that inasmuch as defendant had never obtained a court order requiring Bruce Farkas to pay her child support, such support having been provided by Bruce Farkas voluntarily, the conveyances to her lacked consideration.   Nor is there merit to plaintiff's alternative argument that the challenged conveyances were proper as child support only to the extent that Bruce Farkas would have been required to make such payments pursuant to Family Court Act § 413.   Finally, dismissal of plaintiff's cause of action under Debtor and Creditor Law § 276 was proper since plaintiff failed to establish by sufficient direct or circumstantial evidence that defendant actually intended to defraud plaintiff (see Wall St. Assocs. v. Brodsky, 257 A.D.2d 526, 528-529, 684 N.Y.S.2d 244).