Thomas Calfa, appellant, v. Sau Lam Cheung, et al., respondents.

Reset A A Font size: Print

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

Thomas Calfa, appellant, v. Sau Lam Cheung, et al., respondents.

2013–02778 (Index No. 10873/10)

Decided: October 29, 2014

THOMAS A. DICKERSON, J.P. JOHN M. LEVENTHAL SANDRA L. SGROI HECTOR D. LASALLE, JJ. Finder Novick Kerrigan, LLP, New York, N.Y. (Thomas P. Kerrigan and Michelle Charbonneau of counsel), for appellant. Mary T. Dempsey, P.C., New York, N.Y., for respondents.

Argued—September 30, 2014

DECISION & ORDER

In an action, inter alia, to recover damages for the transfer of property without fair consideration in violation of Debtor and Creditor Law § 273–a, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated December 17, 2012, which denied his motion for summary judgment on the second cause of action insofar as asserted against the defendants Pui Din Lee and Winnie Fong, without prejudice to renewal after completion of discovery.

ORDERED the that the order is affirmed, with costs.

The second cause of action alleged that the defendants violated Debtor and Creditor Law article 10.   The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the second cause of action insofar as asserted against the defendants Pui Din Lee and Winnie Fong. The plaintiff's submissions failed to eliminate all triable issues of fact regarding, inter alia, whether the challenged transfers of funds were made in good faith to satisfy antecedent debts (see Debtor and Creditor Law § 272 [a];  Fernbach, LLC v. Calleo, 92 AD3d 831, 832–833;  cf.  Prudential Farms of Nassau County v Morris, 286 A.D.2d 323, 323;  Century 21 Constr.   Corp. v. Rabolt, 143 A.D.2d 873;  Small & Landesman v. Baronick, 143 A.D.2d 221, 222–223).

The failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the plaintiff's motion for summary judgment, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

DICKERSON, J.P., LEVENTHAL, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Copied to clipboard