90 A.D.2d 827 | N.Y. App. Div. | 1982
In an action pursuant to article 10 of the Debtor and Creditor Law, inter alia, to set aside certain conveyances of property as fraudulent as against the plaintiff creditor, defendants appeal from a judgment of the Supreme Court, Nassau County (Harwood, J.), dated April 14, 1982, which, upon granting the plaintiff’s motion for summary judgment, directed that the conveyances be set aside and awarded plaintiff attorney’s fees. Judgment modified, on the law, by deleting the provision awarding plaintiff attorney’s fees. As so modified, judgment affirmed, without costs or disbursements, the cause of action for attorney’s fees is severed and summary judgment is denied as to that cause of action. Although otherwise in agreement with the determination of Special Term, it is our belief that a triable issue of fact has been presented with respect to the plaintiff’s third cause of action (for attorney’s fees). Thus, section 276-a of the Debtor and Creditor Law provides, inter alia, that “[i]n an action or special proceeding brought by a creditor * * * to set aside a conveyance by a debtor, where such conveyance is found to have been made by the debtor and received by the transferee with [the] actual intent, as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors, in which action or special proceeding the creditor * * * shall recover [a] judgment, the justice * * * presiding at the trial shall fix the reasonable attorney’s fees of the creditor * * * and the creditor * * * shall have judgment therefor”. In our view, the affidavits in opposition to the plaintiff’s motion are legally sufficient to raise an issue of fact regarding the defendants’ intentions in entering into the conveyances under review. Accordingly, the
