113 Misc. 2d 356 | N.Y. Sup. Ct. | 1982
OPINION OF THE COURT
This is an action brought pursuant to article 10 of the Debtor and Creditor Law, to set aside allegedly fraudulent conveyances by defendant and judgment debtor David Schoenberg. Plaintiff, father of David Schoenberg, has also joined as defendants Silvia Schoenberg, wife of David, and Sydelle Schoenberg, mother of David. In his pleadings, plaintiff alleges, inter alla, the conveyances were made with actual intent to defraud or delay, and with knowledge on the part of defendants Silvia and Sydelle. Defendants by their answer have entered a denial. Plaintiff now moves for
The undisputed facts are as follows: By memorandum decision dated November 26, 1980, this court, after a full trial, determined that defendant David Schoenberg was liable to plaintiff in the amount of $14,765.79. Judgment was granted December 17, 1980 and entered on December 26,1980. On December 16,1980, defendant David Schoenberg transferred title to certain real property, used as the marital residence by him and and his wife, from himself to himselfiand his wife, and then on December 17,1980, from himself and his wife to his wife alone. There was no monetary consideration for these transfers. Also in mid-December, 1980, defendant David Schoenberg traded in his 1979 Mercedes Benz automobile, valued at $26,000, for $10,000 in cash and for a Datsun 280Z valued at $16,000. Title to the Datsun was put in the name of defendant Sydelle Schoenberg, but is used by all three defendants and garaged at the marital residence of defendants David and Silvia Schoenberg.
Plaintiff subsequently commenced enforcement proceedings under CPLR article 52. Pursuant to an income execution, the County Sheriff has been collecting approximately $320 per month. On April 23, 1981 the Sheriff served a demand for payment, which was returned as “unsatisfied”.
In opposition to plaintiff’s motion, defendants assert through counsel that the intent of the parties, defendant David Schoenberg’s solvency and whether or not there was
Under section 273-a only three elements must be shown: (1) that the conveyance was made without fair consideration; (2) that the conveyor is a defendant in an action for money damages or that a judgment in such action has been docketed against him, and (3) that defendant has failed to satisfy the judgment (Republic Ins. Co. v Levy, 69 Misc 2d 451). The questions of actual intent and insolvency are irrelevant.
As to the allegedly triable issue of consideration, defendant David Schoenberg in essence admits that the transfer of the marital premises to defendant Silvia Schoenberg was without consideration. (See Corbin v Litke, 105 Misc 2d 94.) Defendants David Schoenberg and Sydelle Schoenberg claim rather vaguely that the Datsun was put in defendant Sydelle Schoenberg’s name to satisfy an antecedent debt, which, in appropriate circumstances, constitutes fair consideration (see Debtor and Creditor Law, § 272, subd [a]). Here, however, the Datsun is valued at $16,000 and the debt as alleged by defendant Sydelle Schoenberg was only $8,000, and where the amount of the debt is “disproportionately small as compared with the value of the property” (Debtor and Creditor Law, § 272, subd [b]), no fair consideration has been given. (Cf. Hopkins v Tinklepaugh, 139 Misc 127, affd 234 App Div 728.)
The only remaining issue, normally one for trial, is plaintiff’s request for relief under section 276-a for attorneys’ fees. Actual intent, as distinguished from the intent presumed by section 273-a, is required before attorneys’ fees will be awarded (cf. Corbin v Litke, supra; Republic Ins. Co. v Levy, 69 Misc 2d 451, supra). Here, however, none of the defendants, in the factual affidavits submitted in opposition even generally deny that these transfers were made with intent to hinder delay or defraud the judgment creditor. Plaintiff’s moving papers assert fraud and collusion and defendants’ attorney alleges that the intent issue should be reserved for trial, but his affidavit will not defeat
Submit judgment on notice. Plaintiff’s attorney shall serve and submit with the proposed judgment an affidavit of services for support of the award of attorneys’ fees to be included in the judgment.