Carey v. Crescenzi, 377
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Citation | 923 F.2d 18 |
| Docket Number | No. 377,D,377 |
| Parties | Jamice CAREY, Plaintiff-Appellee, v. Hector CRESCENZI, Armando Crescenzi and Harenzy Realty Corp., Defendants-Appellants. ocket 90-7453. |
| Decision Date | 11 January 1991 |
Page 18
v.
Hector CRESCENZI, Armando Crescenzi and Harenzy Realty
Corp., Defendants-Appellants.
Second Circuit.
Decided Jan. 11, 1991.
Page 19
Paul G. Reilly, Jr., New York City (Reilly & Gatti, of counsel), for defendants-appellants.
Arthur H. Wisehart, New York City (Wisehart & Koch, of counsel), for plaintiff-appellee.
Before CARDAMONE and PRATT, Circuit Judges, and MICHAEL B. MUKASEY, District Judge for the Southern District of New York, sitting by designation.
GEORGE C. PRATT, Circuit Judge:
Defendants Hector Crescenzi, Armando Crescenzi, and Harenzy Realty Corporation appeal from a summary judgment granted by the United States District Court for the Southern District of New York, Kenneth Conboy, Judge. Rejecting the defendants' argument that the complaint was barred by the statute of limitations, the district court determined that, as a matter of law, the two conveyances to the defendants were fraudulent under New York Debtor and Creditor Law Sec. 273-a. It further found that the plaintiff was entitled to attorneys' fees under Sec. 276-a of the same law. Because we agree with the district court that no genuine issue of material fact exists and that the statute of limitations does not bar the complaint, we affirm the district court's summary judgment setting aside the conveyances as to plaintiff Carey. However, because the district court failed to make the findings of actual fraud as required by 276-a to support the award of attorneys' fees against the grantees of the properties, we remand on this issue for further proceedings.
In 1979 Jamice Carey brought an action in the Supreme Court of the State of New York, County of New York, for money damages against her mother, Ona M. Carey, and her mother's attorney, Gene Crescenzi, claiming that they had defrauded her of a trust fund of which she was the beneficiary. After a four-day bench trial, the court found for the plaintiff. As part of its findings and order, the court assigned the case to a special referee to determine the amounts that Ona M. Carey and Gene Crescenzi had misappropriated. Based on the special referee's report, the court, on October 4, 1982, granted a final judgment against Ona M. Carey for $179,569.58 and Gene Crescenzi for $89,784.79. The court also "restrained and enjoined" Ona M. Carey and Gene Crescenzi "from making or suffering any sale, assignment, transfer or interference with any property in which either defendant has an interest" without the court's permission. That judgment was filed on October 13, 1982.
While the state-court action was still pending, Gene Crescenzi conveyed, without monetary consideration, one parcel of real estate to his two sons, Hector and Armando, who are defendants in the present action, and another parcel to their corporation, Harenzy Realty Corporation ("Harenzy
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Realty"), the third defendant in this action. Crescenzi conveyed one parcel to Harenzy on January 6, 1981, and the other parcel to Hector and Armando on May 26, 1982.On October 25, 1985, Jamice Carey brought this federal diversity action against Gene, Hector, and Armando Crescenzi, and Harenzy Realty in the United States District Court for the Southern District of New York, alleging that the two conveyances were fraudulent under New York Debtor and Creditor Law Sec. 273-a.
After the district court dismissed Gene Crescenzi as a defendant, the remaining defendants moved for summary judgment and Carey cross-moved for summary judgment. The district court denied defendants' motion, granted Carey's cross-motion, declared the two conveyances fraudulent as to plaintiff Carey, ordered them set aside as to her, and, pursuant to New York Debtor and Creditor Law Sec. 276-a, granted attorneys' fees to the plaintiff. The court later granted defendants' motion for reconsideration pursuant to Fed.R.Civ.P. 52(b) and 59, and upon reconsideration elaborated on, but adhered to, its earlier decision, and determined that the plaintiff was entitled to attorney's fees, costs, and expenses in the sum of $44,194.70. In the final judgment, dated April 9, 1990, the district court found that "there was actual intent to defraud plaintiff, Jamice Carey, in connection with the two fraudulent conveyances" and ordered Hector and...
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Sullivan v. Stein
...however, a "bald assertion," unsupported by evidence, cannot overcome a properly supported motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991). The Court notes two preliminary matters. First, in their brief, the Sullivans represented to the Court that they no long......
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Mendelsohn v. Roslyn, LLC (In re Leff)
..., as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors." Carey v. Crescenzi , 923 F.2d 18, 21 (2d Cir. 1991) (internal quotations omitted). Therefore, even if Beth were a mere conduit with respect to the Transfers, these causes of acti......
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Mendelsohn v. Roslyn, LLC (In re Leff)
...intent, as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors." Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991) (internal quotations omitted). Therefore, even if Beth were a mere conduit with respect to the Transfers, these causes of......
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Valentine v. Standard & Poor's, 97 Civ. 0005(SS).
...assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.") (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)), reh'g granted on other grounds, 914 F.Supp. 1004 (S.D.N.Y.1996). A pro se party must still allege specific facts establi......