2016 Slip Op. 08192
December 7, 2016
This case is an appeal by the plaintiff for an order by the Supreme Court. One order granted the plaintiff’s motion to put the action on calendar for a settlement conference and ask for the dismissal of a complaint against the defendant and Anne Hoffman. This order denied the plaintiff the opportunity to reargue a motion requesting a dismissal of the complaint, insofar as it is asserted against Helena Behan.
The notice of appeal which directed the dismissal of the complaint against the defendant Anne Hoffman and an order dismissing the complaint against Helena Behan are considered applications for leave to appeal.
It is ordered that the order dated 10/15/13 is reversed. The plaintiff’s motion to restore the action is granted.
It is ordered that the appeal from the order dated 7/23/14 is denied. The portion where the plaintiff sought to restore the action is dismissed considering the decision in the order dated 10/15/13.
It is ordered the bill of costs is awarded to the plaintiff.
In 2006, the husband plaintiff Steven Behan filed an action for divorce and ancillary relief from the wife and defendant Helena Behan. Pursuant to a settlement agreement, the defendant agreed to pay the plaintiff $200k for an interest in Kelron, Inc. (dba Grafton Street Pub). This agreement set forth a schedule of payments to total $200k. If the wife defaulted on a payment the entire amount would become due and payable. In June of 2007 the defendant sold her interest in the company to Anne Hoffman for $10k and stopped making payments.
In December of 2010, the plaintiff filed this action against the wife and Hoffman, to cancel the transfer of interest because it was a fraudulent conveyance and to collect damages for fraud. The plaintiff contends that $400K is due and the defendant ownership in Kelron, Inc. was collateral should she default. He alleged that the defendant “avoided compliance” by selling her entire interest in Kelron, Inc. for $10K.
On December 28, 2010 the Supreme Court held a hearing to determine whether the defendant had an interest in Kelron at the time the complaint was filed.
Later, on January 3, 2013, the matter was taken off calendar making reference to a prior November 29, 2012 hearing.
The plaintiff sought to put the matter back on calendar in July of 2013. He contended that the court’s prior hearing didn’t address all the issues. At the prior hearing the court said it would not deal with the fraudulent transfer issue. The court granted the plaintiff a motion to direct the parties to appear for a settlement conference and requested a dismissal of the complaint against Hoffman. The court concluded that the wife didn’t own stock in the business and that all remaining claims are against the wife alone.
The plaintiff tried to renew his effort to restore the action to the calendar. On July 23, 14 the court denied this and dismissed the action against the wife. The court stated that it had already dealt with the issue at length.
The Supreme Court should have granted the plaintiff’s motion to restore the matter to the court calendar. The calendar rule (CPLR 3404) doesn’t apply to this matter (Kapnisakis v. Woo 114 AD3d 729; Florexville-Victor v. Douglas 135 AD 903; Lopez v. Imperial Delivery Serv., 282 AD 19).
The plaintiff sought to restore the action and determine whether the defendant’s transfer of interest to Hoffman was fraudulent. The court erred in dismissing the complaint (cf. Sylvester v. New Water St. Corp. 16 AD3d 486, 488). The court did not entertain the plaintiff’s motion for leave to renew the motion as a summary judgment.
The Supreme Court erred in denying the plaintiffs motion to restore the matter to the calendar and dismiss the action against the defendants.
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