74 A.D.2d 687 | N.Y. App. Div. | 1980
Appeal from a judgment of the Supreme Court in favor of petitioner, entered February 24, 1978 in Broome County, upon a decision of the court at a Trial Term, without a jury. Petitioner Cox seeks to compel the appellants (Koffman Group), pursuant to CPLR 5225 (subd [b]) and 5227, to pay Cox money owed to Cox’ judgment debtor, the P.D.C. Corporation (P.D.C.), by the Koffman Group. This matter is before us on remand from the Court of Appeals, which held that this court’s prior holding that Cox could not secure a turnover order directed to the Koffman Group because there had not been a levy of execution against the assets of the debtor, P.D.C., held by the Koffman Group was in error (see Cox & Assoc. v Koffman, 67, AD2d 1025, revd 48 NY2d 878). It is necessary to consider several issues which become relevant in this proceeding in view of the court’s ruling. The issues stem from a convoluted set of facts which evolved from transactions between the litigants in these proceedings. The trial court found that Cox was entitled to have a conveyance by P.D.C. of a management contract between P.D.C. and the Koffman Group to Bella Vista set aside as a fraudulent conveyance to the extent necessary to satisfy its judgment, that the management contract was not terminated at the time of the entry of judgment by Cox in accordance with its terms and that there was enough money in the custody or control of the Koffman Group in which P.D.C. had an interest under the management contract to satisfy Cox’ judgment. It also held that Cox had a superior right as a judgment lien creditor over that of the Koffman Group as the claimed holder of an unperfected collateral security agreement with regard to which a Uniform Commercial Code financing statement was never filed, and it directed the Koffman Group to turn over to Cox $75,237.32. The trial court found that the sum of $27,270.81, applied by the Koffman Group in foreclosure of its security on the Garden Village Plaza transaction, and the amount of $15,877.81, held by the Koffman Group in a maintenance and repair escrow account, plus moneys received from Conrail after March 26, 1976, were all reachable by Cox as judgment creditors of P.D.C. The series of events leading to this controversy commenced on April 5, 1971 when P.D.C. entered into an agreement with Penn Central Transportation Company (Penn). P.D.C. was to construct, maintain and operate a dormitory for Penn employees located at Collinwood, Ohio. P.D.C. received a ground lease for the property on which the dorm was to be constructed for 15 years, renewable