In the Matter of Cit Group/Commercial Services, Inc. v. 160-09 Jamaica Avenue Ltd. Partnership

• Decision Date: 03 January 2006
• Docket Number: 6684N.
• Citation: 808 N.Y.S.2d 187,25 A.D.3d 301,2006 NY Slip Op 00002
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of CIT GROUP/COMMERCIAL SERVICES, INC., Respondent, v. 160-09 JAMAICA AVENUE LIMITED PARTNERSHIP, Appellant, et al., Respondent.

25 A.D.3d 301

808 N.Y.S.2d 187

2006 NY Slip Op 00002

In the Matter of CIT GROUP/COMMERCIAL SERVICES, INC., Respondent, v. 160-09 JAMAICA AVENUE LIMITED PARTNERSHIP, Appellant, et al., Respondent.

6684N.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 3, 2006.

Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered June 16, 2004, which denied respondent-appellant's motion to vacate a default judgment, affirmed, without costs.

Petitioner CIT Group/Commercial Services, Inc. (CIT) obtained a $66,798.02 default judgment against judgment debtor Central Men's Shop, Inc. (CMS). However, before the judgment was entered, CMS paid $9,000 to respondent-appellant 160-09 Jamaica Avenue Limited Partnership (the Partnership), its landlord, for an alleged three months of back rent pursuant to a "handshake lease." CMS's officers were David Kober and his brother-in-law Seth Orenstein; the Partnership's shareholders are all related to Orenstein and/or Kober by blood or marriage. CIT, as assignee of CMS's accounts receivable, commenced the instant proceeding seeking, inter alia, a turnover of the $9,000 transfer. The petition was duly served on the Partnership by service upon the Secretary of State and an additional mailing was sent to its address on file. Judgment was entered against the Partnership on default and the transfer was set aside pursuant to Debtor and Creditor Law §§ 273, 274, 275 and 276.

The Partnership's subsequent application to vacate its default, pursuant to CPLR 317 and/or 5015, was denied on the ground that its failure to keep a current address on file with the Secretary of State was not a reasonable excuse under CPLR 5015. We affirm but on different grounds, finding that the Partnership, as movant, failed to adequately demonstrate a meritorious defense, which is required under both CPLR 317 and 5015 (Peacock v Kalikow, 239 AD2d 188, 189 [1997]).^* Given the "handshake lease," which was not memorialized in an arm's length formal agreement, the timing of the transfer, which, at or about the date CMS ceased operations, either rendered CMS insolvent or was made at a time when CMS was insolvent, and the amount of the transfer, we find, contrary to the dissent's opinion, that the Partnership's affidavit in support, which does not dispute these facts and can only be characterized as conclusory, is insufficient to show a meritorious defense to the action.

A conveyance that renders the conveyor insolvent is fraudulent as to creditors without regard to actual intent, if the conveyance was made without fair consideration (Debtor and Creditor Law § 273). Also fraudulent are conveyances made without fair consideration when the conveyor "intends or believes that he will incur debts beyond his ability to pay as they mature" (Debtor and Creditor Law § 275). An antecedent debt can constitute fair consideration (Matter of American Inv. Bank v Marine Midland Bank, 191 AD2d 690, 692 [1993]). However, in the absence of a copy of the lease between CMS and the Partnership, invoices or rent history records evidencing proof of the monthly rental obligation and the total amount of arrears, the Partnership fails to demonstrate a bona fide debt, antecedent or otherwise. The rule that a debtor may generally favor one creditor over another (see Ultramar Energy v Chase Manhattan Bank, 191 AD2d 86, 90-91 [1993]) is not a license to engage in sham transactions in furtherance of that preference.

We further reject the notion that CMS's payment to its creditors in an arbitrarily reduced rate across the board constituted fair consideration. We note that CMS paid many of its other suppliers and creditors in full with the personal credit cards of its shareholders and that the luxury automobile leases, for which Kober and Orenstein were personally liable, were paid an extra month in advance. In addition, uncontroverted bank records show that CIT's claim exceeded CMS's assets, rendering CMS either insolvent or nearly insolvent at the time of the subject payment.

Even assuming, arguendo, that the payment was made in partial satisfaction of a bona fide antecedent debt, it was not made in good faith. "Good faith is required of both the transferor and the transferee, and it is lacking when there is a failure to deal honestly, fairly, and openly" (Berner Trucking v Brown, 281 AD2d 924, 925 [2001] [citation omitted]; see also Smith v Kanter, 273 AD2d 793, 795 [2000]). Transfers to a controlling shareholder, officer or director of an insolvent corporation are deemed to be lacking in good faith and are presumptively fraudulent (A.F.L. Falck, S.p.A. v E.A. Karay Co., Inc., 722 F Supp 12, 17 [1989]; see also Julien J. Studley, Inc. v Lefrak, 66 AD2d 208, 213 [1979], affd 48 NY2d 954 [1979]).

Under Debtor and Creditor Law § 276, "[e]very conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors." Given the "badges of fraud," which include the close relationship among the parties to the transaction, the inadequacy of consideration, CMS's knowledge of CIT's claims and its inability to pay them, and the timing of the transfer (see Pen Pak Corp. v LaSalle Natl. Bank of Chicago, 240 AD2d 384, 386 [1997]), Orenstein's sworn explanation that the transfer was in partial satisfaction of an antecedent rent debt does not negate the inference as to intent.

Concur — Mazzarelli, J.P., Sweeny, Catterson and Malone, JJ.

Saxe, J., dissents in a memorandum as follows:

I conclude that under CPLR 317, respondent 160-09 Jamaica Avenue Limited Partnership was entitled to vacatur of its default in this turnover proceeding brought by a judgment creditor against respondent as the judgment debtor's transferee. The motion seeking to vacate its default should have been granted and its proposed answer deemed served.

Facts

Petitioner CIT Group obtained assignment of the accounts receivable owed to a clothing vendor by Central Men's Shop, a store whose place of business was located at 160-09 Jamaica Avenue, for purchases made from the vendor between May 2000 and September 2001. In an action against Central Men's Shop, petitioner obtained the underlying $61,000 money judgment on default. Petitioner then brought this proceeding against respondent 160-09 Jamaica Avenue LP for turnover of the $9,000 which Central Men's Shop had paid respondent on March 11, 2002.

Petitioner claims that this $9,000 payment constituted a fraudulent conveyance under the Debtor and Creditor Law, based upon allegations that the respondent company is owned and operated by individuals closely related to those who owned and operated Central Men's Shop, and that the payment was made without fair consideration or good faith, while Central Men's Shop was either insolvent or rendering itself insolvent by making the payment, with the actual intent to hinder, delay or defraud creditors.

Service of the petition was made through the Secretary of State pursuant to Partnership Law § 121-104. Following respondent's failure to answer, petitioner obtained the underlying default judgment against respondent.

Respondent then moved to vacate its default pursuant to CPLR 5015 and 317, asserting that petitioner's service of process on the Secretary of State had resulted in delivery of the petition to the premises of 160-09 Jamaica Avenue, and since respondent was an absentee landlord which did not maintain any office there, and in fact had relet the space to another tenant, it did not receive the papers. On the issue of its meritorious defense, it asserted that the $9,000 was partial payment of an antecedent rent debt totaling $27,000 for the period of July 1, 2001 to March 31, 2002, which payment Central Men's Shop made in good faith as part of its attempts to pay each of its creditors about 30% across the board. Specifically, Central Men's Shop vice-president Seth Orenstein stated that for the six months between the fall of 2001, when they decided to close the store, until its actual closing in April 2002, he and its president drew no salary, and generally attempted to pay their creditors 30% of sums due. Although such a cash payment was not possible in the case of petitioner's...