Heimbinder v. Berkovitz

• Citation: 263 AD2d 466,693 N.Y.S.2d 200
• Parties: Lawrence HEIMBINDER, et al., respondents, v. Joseph BERKOVITZ a/k/a Joseph Berkowitz, etc., et al., appellants.
• Decision Date: 12 July 1999
• Court: New York Supreme Court Appellate Division

Page 200

693 N.Y.S.2d 200

Lawrence HEIMBINDER, et al., respondents, v. Joseph BERKOVITZ a/k/a Joseph Berkowitz, etc., et al., appellants.

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

July 12, 1999.

Weinstock, Joseph, Klatsky, Nisonoff & Schwartz, LLP, Belle Harbor, N.Y. (Israel Weinstock and James Klatsky of counsel), and Graubard, Mollen & Miller, New York, N.Y. (Milton Mollen and Jack Sheridan of counsel), for appellants (one brief filed).

Reingold & Tucker, Brooklyn Heights, N.Y. (Abraham Reingold of counsel), for respondents.

MYRIAM J. ALTMAN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to set aside allegedly fraudulent conveyances pursuant to Debtor and Creditor Law §§ 273 and 276, the defendants appeal from a judgment of the Supreme Court, Kings County (Demarest, J.), dated June 16, 1998, which, after a nonjury trial (Vaccaro, J.), is in favor of the plaintiff R & R Closing Corp. f/k/a Redi-Records Industries, Inc., and against them, in the principal sum of $236,000, with interest at the rate of 15% per annum from February 22, 1991.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof providing for interest at the rate of 15% per annum from February 22, 1991, and substituting therefor a provision providing for interest at the statutory rate of 9% per annum from February 22, 1991.

In June 1990 the plaintiff R & R Closing Corp. f/k/a Redi-Records Industries, Inc. (hereinafter R & R), sold its assets to the defendant Formadyne Industries, Inc. (hereinafter Formadyne), for $300,000. $50,000 was paid at closing with the balance of $250,000 to be paid pursuant to a promissory note signed by the defendant Joseph Berkovitz a/k/a Joseph Berkowitz (hereinafter Berkovitz), as president of Formadyne. The promissory note provided that interest would be payable at the rate of 10% per annum except that "the Borrower shall pay interest, payable on demand, on overdue principal and, so far as may be lawful, on overdue interest" at a rate of 15% per annum.

After Formadyne defaulted, R & R commenced an action for summary judgment in lieu of complaint against Formadyne. A judgment dated February 22, 1991, was entered against Formadyne in the sum of $250,000 upon its default in opposing the motion. In the interim Formadyne transferred its assets to Colonial Co., Inc., which was controlled by Berkovitz and his wife. When R & R was...