New York

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Murray Hill Manor Co. v. Destination Paradise, Inc.,
1999.NY.0053424 (N.Y.App.Div. 11/30/1999)

Supreme Court, Appellate Division, First Department, New York

2493

1999 N.Y. Slip Op. 10119, 1999.NY.0053424

November 30, 1999

MURRAY HILL MANOR COMPANY, PLAINTIFF-RESPONDENT,

v.

DESTINATION PARADISE, INC., ET AL., DEFENDANTS, MARK D. SEVERINI, ET AL., DEFENDANTS-APPELLANTS.

Counsel: Jay J. Gurfein Ephrem Wertenteil

Ellerin, P.J., Williams, Lerner, Rubin, Saxe, JJ.

The opinion of the court was delivered by: Per Curiam

OPINION OF THE COURT

Order, Supreme Court, New York County (Emily Goodman, J.), entered on or about August 6, 1998, which to the extent appealable, denied defendants' respective cross motions for summary judgment dismissing plaintiff's complaint, unanimously affirmed, without costs.

The issues regarding the IAS court's finding that the transfer between defendant Destination Paradise, Inc. and non-party Destination Holiday, Inc. was fraudulent and should be set aside are not properly before this Court since the record does not contain the settled order that the IAS court directed to implement its decision as to the fraudulent transfer, and no appeal lies from that portion of the appealed paper directing the settlement of an order (CPLR 5512[a]).

To the extent that defendants appeal from the denial of their cross motions for summary judgment, the IAS court properly determined that there were issues of fact as to whether the primary individual defendants, Garroni and Bernstein, exercised complete domination and control over the corporation or were acting for non-corporate purposes with respect to the December 1993 payments to the shareholders, which plaintiff claims rendered the corporation insolvent, and as to whether such transfers to the individual shareholders in 1993 were fraudulent within the meaning of Debtor Creditor Law §§ 273 and 274, and thus void with respect to the corporation's creditors.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 30, 1999

The legal opinions are a matter of public record (that's how we got them), and as such there can be no defamation for republishing them. Sometimes, however, legal opinions are reversed, vacated, or significantly modified, etc., and we do not discover this fact until somebody points it out to us. As we do not desire to publish inaccurate or outdated information, if a legal opinion has been reversed, vacated, or significantly modified, please advise us of this fact immediately, by fax to (877) 698-0678 or you may also send regular postal correspondence to Riser Adkisson LLP at 1827 Powers Ferry Road, Building One, Suite 200, Atlanta GA 30339.