Friedman v. Friedman
| Decision Date | 22 December 1986 |
| Citation | 125 A.D.2d 539,509 N.Y.S.2d 617 |
| Parties | Rhoda FRIEDMAN, Plaintiff-Respondent, v. Marvin FRIEDMAN, Defendant-Respondent, Sidney Friedman, Nonparty Appellant, Carl Rosenberg, et al., Nonparty Respondents. |
| Court | New York Supreme Court — Appellate Division |
Esterman & Esterman, P.C., New York City (Stephan A. Harrison, of counsel), for nonparty appellant.
Before MOLLEN, P.J., and BRACKEN, BROWN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were divorced by judgment dated February 26, 1985, Sidney Friedman, the assignee of a mortgage which the judgment of divorce set aside as a fraudulent conveyance, appeals from an order of the Supreme Court. Nassau County (Robbins, J.), entered July 2, 1985, which denied his motion to vacate (1) the provision of the judgment of divorce which declared the conveyance fraudulent and set it aside, and (2) an order of the same court, dated May 2, 1985, which enforced that portion of the judgment and granted the mortgagors' motion for an order "in the nature of interpleader".
ORDERED that the order is reversed, on the law, without costs or disbursements, and the appellant's motion is granted to the extent that the seventh decretal paragraph of the judgment of divorce dated February 26, 1985, and the order dated May 2, 1985, are vacated without prejudice to (1) the right of the mortgagors to commence an action in the nature of interpleader and (2) the right of Rhoda Friedman to commence a plenary action pursuant to the Debtor and Creditor Law regarding the assignment of the mortgage.
During the pendency of their divorce action, the plaintiff wife Rhoda Friedman and the defendant husband Marvin Friedman sold their home to Carl and Rivka Rosenberg, who contemporaneously executed two separate purchase money mortgages: one in the sum of $90,000 to the plaintiff and another for $70,000 to the defendant. Several months thereafter, the defendant assigned his mortgage to his brother, the appellant Sidney Friedman, which assignment was duly recorded.
A judgment of divorce was granted in February of 1985 and the seventh decretal paragraph thereof declared that "pursuant to Section 278 of the Debtor and Creditor law, the conveyance of a certain mortgage made by Carl Rosenberg and Rivka Rosenberg in favor of Martin Friedman to one Sidney Friedman, the natural brother of the defendant is hereby deemed fraudulent and set aside". Sidney Friedman was neither a party to the action nor was he afforded an opportunity to be heard.
Soon after, the defendant moved, inter alia, for resettlement of the judgment of divorce by deleting the seventh decretal paragraph, on the ground that the validity of the mortgage assignment was neither litigated at the trial, nor properly the subject of the divorce action, but was "a separate issue, which must be determined on the merits".
The Rosenbergs, having received conflicting instructions with respect to whom they were to tender their payments,...
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