DiMauro v. United, LLC

• Decision Date: 05 November 2014
• Docket Number: 2013-02221
• Parties: Joseph DiMAURO, et al., respondents, v. UNITED, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 568
996 N.Y.S.2d 297
2014 N.Y. Slip Op. 07469

Joseph DiMAURO, et al., respondents
v.
UNITED, LLC, et al., appellants.

2013-02221

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

Nov. 5, 2014.

996 N.Y.S.2d 297

Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), for appellants.

Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Thomas E. Stagg and Andrew Kazin of counsel), for respondents.

THOMAS A. DICKERSON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Opinion

122 A.D.3d 568

In an action, inter alia, to set aside alleged fraudulent conveyances pursuant to Debtor and Creditor Law article 10, the defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Westchester County (Adler, J.), dated January 8, 2013, which, among other things, denied those branches of their motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the third through eighth causes of action.

ORDERED that the order is modified, on the law, by deleting the

122 A.D.3d 569

provision thereof denying that branch of the defendants'

996 N.Y.S.2d 298

motion which was pursuant to CPLR 3211(a)(7) to dismiss the eighth cause of action for failure to state a cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs payable by the defendants.

On a motion pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any...