Garcia v Estate of Scott 2015 NY Slip Op 30567(U) March 2, 2015 Sup Ct, Bronx County Docket Number: /2012 Judge: Alison Y. Tuitt Cases posted

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1 Garca v Estate of Scott 2015 NY Slp Op 30567(U) March 2, 2015 Sup Ct, Bronx County Docket Number: /2012 Judge: Alson Y. Tutt Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court Systems E-Courts Servce, and the Bronx County Clerks offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] FLED Mar Bronx County Clerk NEW YORK SUPREME COURT COUNTY OF BRONX A-5 TERESA GARCA, NDEX NUMBER: /2012 Plantff, -aganst- Estate of COLN SCOTT, WNSTON J. SCOT.f as Admnstrator of the Estate of COLN SCOTT and WNSTON J. SCOTT, ndvdually and Personally, Defendants. Present: HON. ALSON Y. TUTT Justce The followng papers numbered 1-3, Read on ths Defendants Moton for Summary JJdgment On Calendar of 4/28/14 Notce of Moton-Exhbts, Affrmaton._ " Affrmaton n Opposton. --2= Reply Affrmaton. --_~ Upon the foregong papers, plantffs moton for summary judgment, attachment of property, attorneys fees and puntve damages s dened for t~e reasons set forth heren. The wthn acton was commenced by plantff seekng to avod an alleged fraudulent transfer of the real property located at 834 East 222 Street, Brohx, New York from Coln Scott, deceased, to defendant Wnston J. Scott, hs son. On March 31, 2007, plantff was struck by a motor vehcle owned and operated by Coln Scott whle she was a pedestran crossng a street. Coln Scott was 92 years old at the tme of the. accdent. Plantff sustaned severe personal njures as a result of the accdent and she nsttuted a personal njury acton aganst Coln Scott. The case proceeded to tral and plantff was awarded a verdct on Aprl 21,

3 2 [* 2] FLED Mar Bronx County Clerk At the tme of the verdct, Coln Scott was stll alve. Shortly after the verdct, he ded and no admnstrator was apponted for hs estate, frustratag plantffs ablty to obtan judgment. On July 13, 2011, Wnston J. Scott, became the voluntary admnstratbr of the estate. A judgment aganst the Estate of Coln Scott was sgned on December 15, 2011 n the amount of $1,729, Plantff alleges that shortly after beng served wth the Summons and Complant n the underlyng acton, Coln Scott fraudulently transferred hs nterest n hs property to Wnston Scott to avod plhntff accessng hs assets. Plantff brought ths acton on F ebjary 2, 2012 aganst the Estate of Coln Scott and Wnston J. Scott, ndvdually and personally, to reform a 2007! deed whch plantff alleges was a fraudulent conveyance pursuant to New York Debtor and Credtor Law (herenafter "DCL") 276, 275 and 273, to attach the property, the only asset of the Estate, pursuant to C.P.L.R. 6~12 (a) for damages based upon the fraud, for puntve damages and attorneys fees based upon DCL 276-a. DCL 276 provdes that "[e]very conveyance made and every oblgaton ncurred wth actual ntent... to hnder, delay, or defraud ether present or future credtors, s fraudulent as to both present and future credtors." ~Even pror to the adopton of Secton 276, the exstence of an actual ntent to defraud present or future credtors made a conveyance of property wth that ntent vod as to such credtors." Altman v. Fnke, 52 N.Y.S.2d 634 (lt Dept. 1945), affd, 295 N.Y.651 (1945). "Secton 276 of the Debtor and Credtor Law provdes that every 1 conveyance made wth the Actual ntent to hnder, delay or defraud credtors s fraudulent and vod. n ths coj.ecton the actual ntent to defraud conssts of decepton ntentonally practced to frustrate the legal rghts of another. A prme example of ths type of fraud s where a debtor transfers hs property to another whle retanng the use thereof so as to contnue n busness free from the r clams of credtors." Southern ndustres, nc. v. Jeremas, 411 N.Y.S.2d 945 (2d Dept. 1978). The requste ntent requred by 276 need not be proven by drec~ evdence, but may be nferred from the crcumstances surroundng the fraudulent transfer. Stenberg v. Levne, 774 N.Y.S.2d 810 (2d Dept. 2004); Marne Mdland Bank v. Murkoff, 508 N.Y.S.2d 17 (2d Dept. 1986): n determnng whether a conveyance was fraudulent, the Courts wll consder "badges of fraud", whch are crcumstances that accompany fraudulent transfers so commonly that ther presence gve rse to an nferenhe of actual ntent to defraud. Stenberg, supra; Pen Pak Corp. v. LaSalle Natonal Bank of Chcago, 658 N.Y.S.2d 407 (2d Dept. 1997). "Badges of fraud" nclude lack or nadequacy of consderaton, famly, frendshp, ~r close assocate relatonshp between transferor and transferee, the debtors retenton of possesson, beneft, or use of the property n queston, the exstence of a

4 [* 3] FLED Mar Bronx County Clerk pattern or seres of transactons or course of conducl after the ncurrng of debt, and the transferors knowledge of the credtors clam and the nablty to pay t. St~nberg, supra; Pen Pak Com., supra.. Plantff alleges that on June 13, 2007, "shortly after beng served wth the Summons and Complant" n an attempt to defraud future credtorl. namely the plantff Teresa Garca, defendant Coln Scott fraudulently transferred hs entre ownershp of hs ~esdence known as 834 East 222"d Street, Bronx, New York to hs son Wnston J. Scott. However, the Summorls and Complant n the underlyng personal njury acton was not fled wth the Court untl July 20, FJrhermore, the affdavt of servce shows that Coln Scott was served on July 26, 2007 by affxng a copy of the Summons and Complant to hs door and malng a copy to hs address on July 27, Therefore, plantffs contenton that Coln Scott fraudulently transferred ttle to hs son after beng served s naccurate. t s true that the deed was not fled untl August 7, 2007, and by that tme defendant had been served wth the Summons and Complant. Whle t s true that the decedent and hs son, knowng that he had been nvolved n a motor vehcle accdent n whch someone was njured, could have f conjured up the scenaro that Coln Scott could be sued for neglgence, gven that he struck a pedestran and hs advanced age of 92 years old, and could have antcpated not havng enough automoble nsurance coverage to pay for the damages, and could have decded to trarlsfer the property even before a lawsut was commenced, just n case. Whle ths scenaro could very well be truj, there s also much speculaton and surmse whch prevents the grant of summary judgment. Plantff argues C~ln Scotts llct transfer of hs nterest n real property less than three months after he ran over the plantff was obvously calculated to deplete hs assets and was part of hs overall effort to defraud hs future credtors, spetfcally the plantff heren., However, there s no evdence to show that defendants knew that a lawsut would ~e fled where the plantff could go after Coln Scotts personal assets. The Courts functon on ths moton for summary judgment s ssue fndng rather than ssue determnaton. Sllman v. Twenteth Century Fox Flm Corp., 3 N.Y.2d 395 (1957). Snce summary judgment s a drastc remedy, t should not be granted where there s any doubt as to the exstence of a trable ssue.. Rotuba Extruders v. Ceppos, 46 N. Y.2d 223 (1978). The movant must come forward wth evdentary proof n admssble form suffcent to drect judgment n ts favor as a matter oflaw. Zuckerman v. Cty of New York, 49 N.Y.2d 557, 562 (1980). Thus, when the exstence of an ssue of fact s even arguable or debatable, summary judgment should be dened. Stone v. Goodson, 8 N,.Y.2d 8, (1960); Sllman v. Twenteth Century Fox Flm 3

5 [* 4] ronx County Clerk Corp., supra. The proponent of a moton for sumrdary judgment carres the ntal burden of producton of evdence as well as the burden of persuason. Alvar~z v. Prospect Hosptal, 68 N.Y.2d 320 (1986). Thus, the movng party must tender suffcent evdence to de4onstrate as a matter of law the absence of a materal ssue. of fact. Once that ntal burden has been satsfed, 1 the "burden of producton" (not the burden of persuason) shfts to the opponent, who must now go forward ~d produce suffcent evdence n admssble form to establsh the exstence of a trable ssue of fact. The burden of persuason, however, always remans where t began,.e., wth the proponent of the ssue. Thus, f evdence s equally balanced, the movant has faled to meet ts burden. 300 East 34th Street Co. v. Habeeb, 683 N.Y.S.2d 175 (1st Dept. 1997). As argued by plantff, there are legtmate "badges of fraud" here. Coln Scott owned the property, but transferred ownershp whle stll lvn~ and usng the property for hs own beneft after the transfer of ttle. There was no change n hs use of the property after the transfer and he contnued to resde at the premses untl hs death. Hs daughter who lved at 1 the premses before the transfer, contnued to lve at the premses after the transfer. Wnston J. Scott admts that post-transfer, hs father contnued to collect the rent generated by a tenant on the property. As a result of the 2007 deed, Wnston J. Scott dd not transfer any money to hs father and there was no consderaton for the transfer. Pror to the sgnng of the deed, Wnston J. Scott was aware that hs father had struck a pedestran. He was also aware that hs father only had nsurance on hs vehcle n the amount of $50,000/$100,000. Notwthstandng these legtmate arguments, plantff s unable to show wth evdentary proof n admssble form "the transferors knowledge of the credtors clam and the nablty to pay t",.e, that Coln Scott knew of Teresa Garcas clam at the tme ofthe transfer. At the tme the deed was prepared, plantff had not yet fled her underlyng personal njury acton ~nd defendant had not been served. Therefore, t cannot be sad, as a matter of law, that Coln Scott knew of p~antffs clam at the tme of the transfer. Whle a reasonable person may have predcted that a lawsut was a lk~ly event, t cannot be sad here that s the reason that Coln Scott transferred ttled of hs property to hs son. : The Court notes the nadequaces ~ defendants opposton; Wnston J. Scotts statements that he gave rroney to hs father for the upkeep of the property and that he and hs father opened jont checkng and ; savngs accounts to make t easer for hm to help hs father wth the propertes expenses are not supported by 4

6 [* 5] Mar Bronx County Clerk any documentary evdence. He offers no bank statements, depost slps, cancelled checks or any other corroboratng documentary evdence to support hs Jelf-servng statements. When the exstence of an ssue of fact s even arguable or debatable, summary judgment should. be dened. Accordngly, plantffs moton for summary judgment and the related relefs must be dened. Ths consttutes the decson and Order of ths Court. Dated: 3 /::<. /JS &!/ ~ / ~ Hon. Alson Y. Tutt 5