McCabe v. Gelfand

• Decision Date: 02 December 1968
• Citation: 295 N.Y.S.2d 583,58 Misc.2d 497
• Parties: Bernard McCABE, Plaintiff, v. Sam GELFAND a/k/a Samuel Gelfand and Leonora Gelfand, Defendants. ; Special Term, Queens County, Part I
• Court: New York Supreme Court

Page 583

295 N.Y.S.2d 583

58 Misc.2d 497

Bernard McCABE, Plaintiff, v. Sam GELFAND a/k/a Samuel Gelfand and Leonora Gelfand, Defendants.

Supreme Court, Kings County; Special Term, Queens County, Part I.

Dec. 2, 1968.

[58 Misc.2d 498] Jerome Edelman, Brooklyn, for plaintiff. Kommel, Rogers, Lorber & Shenkman, New York City, for defendants.

MEMORANDUM

CARMINE A. VENTIERA, Special Referee.

This matter has been referred to me as Special Referee to hear and determine, based upon the stipulation of the parties.

Motion for an order for leave to reargue is granted, and upon such reargument the order of June 19, 1968 is vacated and the decision heretofore rendered June 4, 1968 (57 Misc.2d 12, 291 N.Y.S.2d 261) is recalled predicated upon the additional facts presented herein, and the following substituted in its stead:

In this action by the plaintiff, a judgment creditor, to set aside the alleged fraudulent conveyance of a parcel of real estate, the plaintiff moves 'for an order dismissing the separate, distinct and complete defenses' contained in paragraphs '7' through '9' inclusive of the second amended answer.

The court believes that under the circumstances presented herein a short resume of the facts should be set forth for clarification.

The plaintiff commenced a personal injury action against the defendant Sam Gelfand in 1958. In June 1960, Gelfand, who was the fee owner and in possession of certain premises, deeded the property to his wife, the co-defendant herein, allegedly without consideration, and divested himself of his other assets. In April 1965, the plaintiff recovered a judgment against Gelfand, on which a substantial balance still remains unpaid. On January 3, 1967, the plaintiff commenced the present action to set aside the aforementioned conveyance.

On plaintiff's prior motion to dismiss the defense of statute of limitations, the plaintiff based his argument on facts indicating an alleged Actual fraud, contending that pursuant to section 48(5) of the Civil Practice Act, which was in effect on the date of the transfer of the property, plaintiff had six years from the discovery in which to commence his action. From the facts and arguments presented, the court determined that in accordance with section 203(f) of the CPLR, which is applied most commonly in Actual fraud cases, and which is designed to shorten the time in which to bring an action, the statute of limitations applicable would be six years from the commission or two years from the discovery, whichever is longer. However, in view of the fact that the date of discovery was in dispute, the court found that a question of fact existed and accordingly, the motion was denied.

On reargument, the plaintiff alleges that the gravamen of the cause of action herein is grounded in equity to set aside a transfer of property for Constructive fraud and to follow the assets of the debtor pursuant to Article 10 of the Debtor and Creditor Law. Plaintiff further contends that this is not an action for Damages based upon Actual fraud to which the six-year limitation applies, but is grounded on Constructive fraud to which the ten-year Statute of Limitations is applicable.

An...