The Estate of Marilyn Monroe LLC v. Maleh
| Docket Number | Index No. 154543/2022,Motion Seq. No. 002 |
| Decision Date | 06 June 2023 |
| Citation | 2023 NY Slip Op 31926 (U) |
| Parties | THE ESTATE OF MARILYN MONROE LLC, MUHAMMAD ALI ENTERPRISES, LLC Plaintiff, v. ALAN J. MALEH, Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for _REARGUMENT/RECONSIDERATION.
Upon the foregoing documents, plaintiffs' motion seeking leave to reargue this Court's prior decision dated October 13 2022 or in the alternative for summary judgment is decided as follows:
Plaintiffs initially commenced the instant action as a Petition on May 26, 2022 seeking to recover monies or other property of judgment-debtor WeePlay Kids LLC ("WeePlay") that were improperly distributed via fraudulent transfers to respondent Alan J. Maleh during the course of petitioners' lawsuit against the j udgm ent-debtor, and allowing petitioners to disregard the transfers and levy upon the monies or other property transferred, and awarding petitioners damages as against respondent, all to the extent necessary to satisfy petitioners' judgment, as set forth in former Debtor and Creditor Law § 278, further seeking attorney's fees pursuant to former Debtor and Creditor Law § 276-a.
As described in the initial Petition, On June 28, 2018 petitioners filed an action against WeePlay in this Court, captioned The Estate of Marilyn Monroe LLC and Muhammed Ali Enterprises LLC v. WeePLay Kids LLC, Index No. 653260/2018. On February 16, 2021, this Court granted plaintiffs motion for summary judgment and Judgment was entered and filed with the Clerk of the Court on March 2, 2021 for $ 188,189.39. Said judgment is now final.
As further described in the Petition, according to Weeplay's K-1 Statements from 2018 and 2019, Alan J. Maleh was the holder of a 99% membership in Weeplay and that Weeplay made distributions of $436,704 to Maleh in 2018 and $352,530 to Maleh in 2019, before filing its final federal tax return in 2020 and closing said business, thereby rendering Weeplay insolvent.
Pursuant to Debtor and Creditor Law § 273 "[e]very conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration." Pursuant to Debtor and Creditor Law § 273-a "[e]very conveyance made without fair consideration when the person making it is a defendant in an action for money damages or a judgment in such an action has been docketed against him, is fraudulent as to the plaintiff in that action without regard to the actual intent of the defendant if, after final judgment for the plaintiff, the defendant fails to satisfy the judgment." Pursuant to Debtor &Creditor Law § 276-a "[i]n an action or special proceeding brought by a creditor ... to set aside a conveyance by a debtor, where such conveyance is found to have been made by the debtor and received by the transferee with actual intent, as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors, in which action or special proceeding the creditor . . . shall recover judgment, the justice or surrogate presiding at the trial shall fix the reasonable attorney's fees of the creditor . . . and the creditor . . . shall have judgment therefor against the debtor and the transferee who are defendants in addition to the other relief granted by the judgment.
In this Court's Order dated, October 13, 2022, this Court converted this action to a plenary action pursuant to CPLR § 103(c). Plaintiff now moves for leave to reargue pursuant to CPLR 2221(d), and upon reargument, granting their Petition for relief under CPLR 5225(b) and/or CPLR 5227, setting aside transfers made to respondent/defendant Alan J. Maleh as fraudulent under the Debtor and Creditor Law and awarding petitioners damages against respondent, including petitioners' reasonable attorneys' fees or in the alternative seeks summary judgment for the same relief.
A motion to reargue is addressed to the sound discretion of the court and is designed to afford a party an opportunity to demonstrate that the court overlooked or misapprehended the relevant facts or misapplied controlling principles of law (see, Schneider v. Solowey, 141 A.D.2d 813 [2d Dept 1988]; Rodney v. New York Pyrotechnic Products, Inc., 112 A.D.2d 410 [2d Dept 1985]). A "motion to reargue is not an opportunity to present new facts or arguments not previously offered, nor it is designed for litigants to present the same arguments already considered by the court" (see, Pryor v. Commonwealth Land Title Ins. Co., 17 A.D.3d 434 [2d Dept 2005]; Simon v. Mehryari, 16 A.D.3d 664 [2d Dept 2005]). As discussed \x\ Mailer of TNT Petroleum, Inc. v. Sea Petroleum, Inc., 72 A.D.3d 694 (2d. Dept. 2010), it is proper to bring this proceeding pursuant to CPLR 5225 (b), rather than a plenary action pursuant to article 10 of the Debtor and Creditor Law. However, rather than convert the proceeding back to a Petition, the Court elects to evaluate Plaintiffs summary judgment motion.
Summary Judgment should not be granted where there is any doubt as to the existence of a material issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 427 N.Y.S.2d 595 (1980). The function of the court when presented with a motion for Summary Judgment is one of issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Weiner v. Ga-Ro Die Cutting, Inc., 104 A.D.2d 331, 479 N.Y.S.2d 35 (1st Dept., 1984) aff'd 65 N.Y.2d 732, 429 N.Y.S.2d 29 (1985). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable...
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