

Calfa v Sau Lam Cheung (2014 NY Slip Op 07318)





Calfa v Sau Lam Cheung


2014 NY Slip Op 07318


Decided on October 29, 2014


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 29, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

THOMAS A. DICKERSON, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2013-02778
 (Index No. 10873/10)

[*1]Thomas Calfa, appellant, 
vSau Lam Cheung, et al., respondents.


Finder Novick Kerrigan, LLP, New York, N.Y. (Thomas P. Kerrigan and Michelle Charbonneau of counsel), for appellant.
Mary T. Dempsey, P.C., New York, N.Y., for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for the transfer of property without fair consideration in violation of Debtor and Creditor Law § 273-a, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated December 17, 2012, which denied his motion for summary judgment on the second cause of action insofar as asserted against the defendants Pui Din Lee and Winnie Fong, without prejudice to renewal after completion of discovery.
ORDERED the that the order is affirmed, with costs.
The second cause of action alleged that the defendants violated Debtor and Creditor Law article 10. The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the second cause of action insofar as asserted against the defendants Pui Din Lee and Winnie Fong. The plaintiff's submissions failed to eliminate all triable issues of fact regarding, inter alia, whether the challenged transfers of funds were made in good faith to satisfy antecedent debts (see Debtor and Creditor Law § 272[a]; Fernbach, LLC v Calleo, 92 AD3d 831, 832-833; cf. Prudential Farms of Nassau County v Morris, 286 AD2d 323, 323; Century 21 Constr. Corp. v Rabolt, 143 AD2d 873; Small & Landesman v Baronick, 143 AD2d 221, 222-223).
The failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the plaintiff's motion for summary judgment, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
DICKERSON, J.P., LEVENTHAL, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


