Donald Merman v. Harry Miller Book Reviews

Donald Merman v. Harry Miller by Supreme Court of New York Book Summary

In an action to set aside a conveyance as fraudulent against the plaintiff creditors, plaintiffs appeal from an order of the Supreme Court, Suffolk County (Geiler, J.), dated May 8, 1980, which denied their motion for summary judgment on their cause of action predicated upon section 273-a of the Debtor and Creditor Law. Order reversed, on the law, with $50 costs and disbursements, motion for summary judgment on the plaintiffs second cause of action granted, and the other causes of action are severed. On June 12, 1973 plaintiffs commenced a negligence action against defendant Harry Miller. On June 3, 1975, while the action was pending, Miller and his wife, the current co-defendant Virginia Miller, as tenants by the entirety, conveyed title to their home to Virginia Miller. On or about January 21, 1980, after they had obtained a judgment against Harry Miller in the negligence action, the plaintiffs commenced the present action against both Millers to set aside the conveyance to Virginia Miller as fraudulent against plaintiffs. After receipt of defendants joint answer, plaintiffs moved for summary judgment on their second cause of action which was predicated upon section 273-a of the Debtor and Creditor Law. That section declares: "Every 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." The motion was denied and the sole issue on this appeal is whether the defendants succeeded in creating a triable issue of fact regarding the existence of "fair consideration" (see Debtor and Creditor Law, § 272) for the conveyance of the property to Virginia Miller. In their moving papers, plaintiffs produced a copy of the deed for the conveyance in question which contained a margin notation of "No consideration paid" and upon which no real estate transfer tax had been paid. Against this evidence, defendant Virginia Miller submitted an affidavit which, in conclusory form, recited that the defendants -- who are still married -- were in the throes of marital strife prior to June, 1975 and that Harry Miller [82 A.D.2d 826 Page 827]

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