Setters v. Al Props. & Devs. (USA) Corp.

• Decision Date: 12 May 2016
• Docket Number: 151372/14, 1134, 1133.
• Parties: In re William SETTERS, et al., Petitioners–Appellants, v. AI PROPERTIES AND DEVELOPMENTS (USA) CORP., Respondent–Respondent, Boymelgreen Family LLC, Respondent.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 492
32 N.Y.S.3d 87
2016 N.Y. Slip Op. 03809

In re William SETTERS, et al., Petitioners–Appellants,
v.
AI PROPERTIES AND DEVELOPMENTS (USA) CORP., Respondent–Respondent,

Boymelgreen Family LLC, Respondent.

151372/14, 1134, 1133.

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

May 12, 2016.

32 N.Y.S.3d 88

Law Offices of Bernard D'Orazio & Associates, P.C., New York (Bernard D'Orazio of counsel), for appellants.

32 N.Y.S.3d 89

Troutman Sanders LLP, New York (Matthew J. Aaronson of counsel), for respondent.

TOM, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, WEBBER, JJ.

139 A.D.3d 492

Order, Supreme Court, New York County (Debra A. James, J.), entered August 4, 2015, which, insofar as appealed from, dismissed petitioners' first cause of action, for intentional fraudulent conveyance under Debtor and Creditor Law (DCL) § 276, and their seventh cause of action for attorneys' fees under DCL § 276–a, unanimously reversed, on the law, with costs, and those claims reinstated and granted. Order, same court and Justice, entered February 9, 2016, which granted respondent AI Properties and Developments (USA) Corp.'s (AI) motion for leave to reargue, and upon reargument, recalled, modified and denied so much of the August 4, 2015 order as granted the DCL § 273–a claim against AI and directed them to pay to petitioner the sum of $1,251,347.00 plus postjudgment interest and costs pursuant to CPLR 5225(b), unanimously reversed, on the law, with costs, and that portion of the August 4, 2015 order reinstated. The Clerk is directed to enter judgment accordingly.

Respondent AI was not entitled to reargument. “Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided ... or to present arguments different from those originally asserted” (William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8 [1st Dept.1992], lv. dismissed in part and denied in part 80 N.Y.2d 1005, 592 N.Y.S.2d 665, 607 N.E.2d 812 [1992] ). Although AI properly preserved the statute of limitations as an affirmative defense in its answer (CPLR 3018[b] ; see Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75, 85, 8 N.Y.S.3d 143 [1st Dept.2015] ), it never argued that petitioner's claims were barred by the applicable statute of...