Ede v. Ede
| Decision Date | 13 May 1993 |
| Parties | Diane L. EDE, Respondent, v. Kevin A. EDE, Defendant, and Dennis W. Ede, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Thomas, Collison & Place (Robert F. Whalen, of counsel), Endicott, for appellant.
Vitanza, Brown & Ciaravino (David M. Brown, of counsel), Endwell, for respondent.
Before WEISS, P.J., and LEVINE, CREW and MAHONEY, JJ.
Appeal from an order of the Supreme Court (Fischer, J.), entered February 25, 1992 in Broome County, upon a decision of the court in favor of plaintiff.
The issue in this appeal is focused upon the conveyance of a fractional portion of ownership of a parcel of land in the Town of Vestal, Broome County, by plaintiff's former husband, defendant Kevin A. Ede (hereinafter Kevin), to his brother, defendant Dennis W. Ede (hereinafter Dennis). The facts briefly stated are that a $2,500 judgment was granted to plaintiff against Kevin for arrearage in payment of child support required by the divorce decree, 1 and that another judgment in favor of Mark Bixby for $3,239.50 was also entered against him. Following entry of these judgments, Kevin executed and delivered the above-described deed which indicated that the consideration was $1 and that no transfer tax was due. Plaintiff commenced this action to set the conveyance aside as fraudulent against his creditors and which resulted in his insolvency. Following a bench trial, Supreme Court found that the conveyance of Kevin's sole remaining asset rendered him insolvent and required that the deed be declared void; the court ordered that the conveyance be set aside, the interest sold by a Referee at public auction and the proceeds be applied to satisfy plaintiff's claims.
In this appeal Dennis has made four arguments, in the first of which he contends that it was error for Supreme Court to have admitted in evidence Kevin's affidavit made August 9, 1989, over objection on the ground that it was tainted by fraud. The argument lacks merit. The affidavit was an admission by a party and not excludable under the hearsay rule (see, Reed v. McCord, 160 N.Y. 330, 337, 54 N.E. 737). Kevin admitted that the value of the property was between $40,000 and $50,000 and that he transferred it to his brother for $1 "for the purpose of keeping it out of the hands of my creditors, including [plaintiff], who then possessed a judgment against me". Any conflict raised by opposing testimony describing the circumstances attendant its execution does no more than present credibility issues for resolution by the trier of fact.
Dennis' remaining arguments focus upon the Debtor and Creditor Law and contend that Supreme Court erred in finding that (1) Kevin was insolvent at the time of the conveyance, (2) the conveyance was not made in good faith, and (3) Kevin's antecedent debt was not fair consideration for the conveyance.
Debtor and Creditor Law § 273 states that "[e]very conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if * * * made * * * without a fair consideration". Insolvency is present when the fair value of his salable assets is less than the amount required to pay existing debts as they become due (Debtor and...
To continue reading
Request your trial
-
Lifeng Chen v. New Trend Apparel, Inc.
...of [the debtor's] salable assets is less than the amount required to pay existing debts as they become due.” Ede v. Ede, 193 A.D.2d 940, 941, 598 N.Y.S.2d 90, 92 (3d Dep't 1993) (citing N.Y. Debt. & Cred. Law § 271 ); Murin v. Estate of Schwalen, 31 A.D.3d 1031, 1032, 819 N.Y.S.2d 341, 343 ......
- SR Holding I, LLC v. Cannavo
- SR Holding I, LLC v. Cannavo
-
Long Oil Heat, Inc. v. Spencer
...the transferor there ‘affirmatively swore that the transaction was intended to evade his creditors’ " (quoting Ede v. Ede , 193 A.D.2d 940, 942, 598 N.Y.S.2d 90 (3d Dep't 1993) ) ). Additionally, in HBE Leasing Corp. v. Frank ( HBE Leasing I ), the Second Circuit explained that, where "a tr......
-
Legal Documents
...(Ill.App., 2008). An affidavit should be considered as a judicial admission and should be binding on whoever executed it. Ede v. Ede , 598 N.Y.S.2d 90 (N.Y.A.D. 3 Dept. 1993); Chanute v. Williams Natural Gas Co. , 743 F.Supp. 1437 (D. Kan. 1990). 5 Capital One Bank, N.A. v. Czekala , 318 Il......
-
Legal documents
...(Ill.App., 2008). An a൶davit should be considered as a judicial admission and should be binding on whoever executed it. Ede v. Ede , 598 N.Y.S.2d 90 (N.Y.A.D. 3 Dept. 1993); Chanute v. Williams Natural Gas Co. , 743 F.Supp. 1437 (D. Kan. 1990). 6 Capital One Bank, N.A. v. Czekala , 318 Ill.......
-
Legal documents
...(Ill.App., 2008). An a൶davit should be considered as a judicial admission and should be binding on whoever executed it. Ede v. Ede , 598 N.Y.S.2d 90 (N.Y.A.D. 3 Dept. 1993); Chanute v. Williams Natural Gas Co. , 743 F.Supp. 1437 (D. Kan. 1990). 9 Capital One Bank, N.A. v. Czekala , 318 Ill.......
-
Legal Documents
...(Ill.App., 2008). An afidavit should be considered as a judicial admission and should be binding on whoever executed it. Ede v. Ede , 598 N.Y.S.2d 90 (N.Y.A.D. 3 Dept. 1993); Chanute v. Williams Natural Gas Co. , 743 F.Supp. 1437 (D. Kan. 1990). 9 Capital One Bank, N.A. v. Czekala , 318 Ill......