Summary
In BBCN Bank, the plaintiff brought a cause of action for aiding and abetting a fraudulent conveyance against Robert Swednick, an attorney representing some of the other named defendants in a separate action.
Summary of this case from Chung Tai Printing (China) Co Ltd. v. Florence Paper Corp.Opinion
05-30-2017
BBCN BANK, formerly known as Nara Bank, Plaintiff–Respondent–Appellant, v. 12TH AVENUE RESTAURANT GROUP INC., et al., Defendants, Robert N. Swetnick, Defendant–Appellant–Respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Jamie R. Wozman of counsel), for appellant-respondent. Harfenist Kraut & Perlstein LLP, Lake Success (Andrew C. Lang of counsel), for respondent-appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York (Jamie R. Wozman of counsel), for appellant-respondent.
Harfenist Kraut & Perlstein LLP, Lake Success (Andrew C. Lang of counsel), for respondent-appellant.
ACOSTA, P.J., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 16, 2016, which denied defendant Robert N. Swetnick's motion for summary judgment dismissing the complaint as against him, and denied plaintiff's motion for summary judgment on the third and tenth causes of action, unanimously modified, on the law, to grant Swetnick's motion, and otherwise affirmed, without costs. The clerk is directed to enter judgment accordingly.
On appeal, plaintiff concedes that it seeks to hold Swetnick liable for aiding and abetting a fraudulent conveyance, not for aiding and abetting fraud generally. The cause of action for aiding and abetting a fraudulent conveyance also should have been dismissed, because there is no cause of action for aiding and abetting a fraudulent conveyance against a person, such as Swetnick in this case, who is alleged merely to have assisted in effecting the transfer, in a professional capacity, and who is not alleged to have been a transferee of the assets or to have benefited from the transaction (see Federal Deposit Ins. Corp. v. Porco, 75 N.Y.2d 840, 842, 552 N.Y.S.2d 910, 552 N.E.2d 158 [1990] ; Cantor Fitzgerald & Co. v. 8an Capital Partners Master Fund, L.P., 132 A.D.3d 402, 402, 16 N.Y.S.3d 733 [1st Dept.2015] ; Estate of Shefner v. De La Beraudiere, 127 A.D.3d 442, 5 N.Y.S.3d 100 [2015] ; Cahen–Vorburger v. Vorburger, 41 A.D.3d 281, 282, 838 N.Y.S.2d 543 [1st Dept.2007] ; Gallant v. Kanterman, 198 A.D.2d 76, 80, 603 N.Y.S.2d 315 [1st Dept.1993] ; see also Roselink Investors, L.L.C. v. Shenkman, 386 F.Supp.2d 209, 226–227 [S.D.N.Y.2004] ; Geren v. Quantum Chemical Corp., 832 F.Supp. 728, 736 [S.D.N.Y.1993], affd. 99 F.3d 401, 1995 WL 737512 [2d Cir.1995] ; In re Parker, 399 B.R. 577, 580–581 [Bankr.E.D.N.Y.2009] ). Since the substantive claim against Swetnick fails as a matter of law, the tenth cause of action, for attorney's fees pursuant to Debtor and Creditor Law § 276–a, must also be dismissed as against him.