Opinion
13327, 651605/13.
10-28-2014
Clement PETROCELLI, Petitioner–Respondent, v. PETROCELLI ELECTRIC CO., INC., et al., Respondents–Appellants, Allan Briteway Electrical Services, Inc., etc., Transferee–Appellant.
Davidoff Hutcher & Citron LLP, New York (Michael Wexelbaum of counsel), for appellants. Anderson Kill P.C., New York (Rachel Kierych of counsel), for respondent.
Davidoff Hutcher & Citron LLP, New York (Michael Wexelbaum of counsel), for appellants.
Anderson Kill P.C., New York (Rachel Kierych of counsel), for respondent.
FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, FEINMAN, KAPNICK, JJ.
Opinion
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 5, 2013, which, to the extent appealed from as limited by the briefs, in this proceeding under CPLR article 52, directed that the judgment debtors would have the burden of proof at the turnover hearing, unanimously reversed, on the law, without costs, to direct that petitioner judgment creditor will have the burden of proof.
The burden of proof in a turnover proceeding rests with the judgment creditor to establish that contested transfers were without adequate consideration or otherwise fraudulent (see National Communications Corp. v. Bloch, 259 A.D.2d 427, 687 N.Y.S.2d 151 [1st Dept.1999] ). Nevertheless, petitioner is entitled to broad discovery to assist in prosecuting the claims, particularly since the evidence is largely within the possession of the judgment debtors and the transferees (see id.; Gryphon Dom. VI, LLC v. GBR Info. Servs., Inc., 29 A.D.3d 392, 815 N.Y.S.2d 65 [1st Dept.2006] ; CPLR 5223 ).