Opinion
12293N Index No. 154932/16 Case No. 2020-01425
11-05-2020
In re 8430985 CANADA, INC., Petitioner–Respondent, v. Jacob FRYDMAN et al., Respondents–Appellants.
Wrobel Markham LLP, New York (David C. Wrobel of counsel), for appellants. The Ryan Law Group LLP, Brooklyn (Andrew J. Ryan of counsel), for respondent.
Wrobel Markham LLP, New York (David C. Wrobel of counsel), for appellants.
The Ryan Law Group LLP, Brooklyn (Andrew J. Ryan of counsel), for respondent.
Acosta, P.J., Singh, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered June 25, 2019, which, to the extent appealed, denied respondents' cross motion to dismiss the amended petition, unanimously reversed, on the law, with costs, to grant the cross motion and dismiss the petition. The Clerk is directed to enter judgment accordingly.
Respondents' documentary evidence, consisting of a series of agreements and modifications to the agreements, conclusively refuted petitioner's central contention, that certain funds transferred to respondents were property of the judgment debtor (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ).
Given that this was an essential element of all of petitioner's claims, the petition should have been dismissed.
Petitioner is incorrect that the motion was barred by the single motion rule, because respondents had moved to dismiss the original petition. The rule is not implicated where, as here, the amendment introduced substantial new material ( Held v. Kaufman, 91 N.Y.2d 425, 430, [671 N.Y.S.2d 429, 694 N.E.2d 430, 1998] ).