Richter v. Sportsmans Properties, Inc.
| Decision Date | 01 March 2011 |
| Citation | 82 A.D.3d 733,918 N.Y.S.2d 511 |
| Parties | Suzanne RICHTER, respondent, v. SPORTSMANS PROPERTIES, INC., et al., defendants, Peter Barniak, appellant. |
| Court | New York Supreme Court — Appellate Division |
82 A.D.3d 733
Suzanne RICHTER, respondent,
v.
SPORTSMANS PROPERTIES, INC., et al., defendants,
Peter Barniak, appellant.
Supreme Court, Appellate Division, Second Department, New York.
March 1, 2011.
James Thomas Murphy, Floral Park, N.Y. (Leslie W. Rubin of counsel), for appellant.
Jules A. Epstein, P.C., Garden City, N.Y., for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ.
In an action to foreclose a mortgage, the defendant Peter Barniak appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated May 27, 2009, which granted the plaintiff's motion, inter alia, for summary judgment on the complaint, and denied his cross motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion, inter alia, for summary judgment on the complaint is denied, and the cross motion of the defendant Peter Barniak pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him is granted.
The defendant Peter Barniak entered into a contract with the defendant Sportsmans Properties, Inc. (hereinafter Sportsmans), for the construction and sale of a single-family house. In March 2001 Barniak commenced an action to recover damages for breach of contract against Sportsmans, alleging that the house had been constructed in an unworkmanlike manner. Barniak prevailed in his breach of contract action, and a judgment in his favor and against Sportsmans, in the principal sum of $91,650.12, was entered on November 8, 2004. After obtaining the judgment, Barniak learned that, while the breach of contract action was still pending, Barry Richter, in his capacity as president and principal shareholder of Sportmans, had transferred title to premises known as 209 Sportmans Avenue (hereinafter the subject property) from Sportmans to his wife, the plaintiff, Suzanne Richter. Thereafter, on March 7, 2005, Barniak commenced a second action against Barry Richter, Suzanne Richter, and Sportsmans (hereinafter collectively the defendants in the second action) alleging, among other things, that the transfer was a fraudulent conveyance in violation of Debtor and Creditor Law § 273-a because it was made without fair consideration at a time when Sportsmans was a defendant in the breach of contract action. The defendants in the second action denied the allegations in the complaint and asserted, as an affirmative...
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