Opinion
2002-03981
Argued September 15, 2003.
September 29, 2003.
In an action, inter alia, to set aside certain fraudulent conveyances, the defendants Nesim Pinto and Avram (Avi) Pinto, d/b/a IJN Co., Inc., separately appeal from an order of the Supreme Court, Nassau County (Warshawsky, J.), dated December 4, 2001, which (1) granted the plaintiff's motion for leave to reargue and renew a prior motion determined in an order of the same court, dated September 8, 2000, and, upon reargument and renewal, amended the prior order by stating that the plaintiff's proper remedy is to seek to set aside the allegedly fraudulent conveyance or to disregard the conveyance and levy upon the property conveyed, and (2) granted that branch of the plaintiff's motion which was for summary judgment against the defendant Nesim Pinto and directed a hearing to aid in the disposition of that branch of the plaintiff's motion which was for an attorney's fee pursuant to Debtor and Creditor Law § 276-a.
Agovino Asselta, LLP, Mineola, N.Y. (Leo F. McGinity, Jr., of counsel), for appellant Nesim Pinto.
Maria J. Aramanda, Long Beach, N.Y., for appellant Avram (Avi) Pinto, d/b/a IJN Co., Inc.
Michael L. Soshnick, Mineola, N.Y. (Andrew Morganstern of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the appeal by the defendant Avram (Avi) Pinto, d/b/a IJN Co., Inc., is dismissed, as that defendant is not aggrieved by the order appealed from ( see CPLR 5511); and it is further,
ORDERED that the appeal by the defendant Nesim Pinto from so much of the order dated December 4, 2001, as directed a hearing to aid in the disposition of that branch of the plaintiff's motion which was for an attorney's fee is dismissed; and it is further,
ORDERED that the order dated December 4, 2001, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant Nesim Pinto.
The appeal by the defendant Avram (Avi) Pinto, d/b/a IJN Co., Inc., must be dismissed because he is not aggrieved by the order appealed from. He has no standing to complain about the relief granted to the plaintiff against his co-defendant, Nesim Pinto, and the order granted the plaintiff no relief against him. Rather, the order adhered to the dismissal of the plaintiff's first four causes of action insofar as asserted against him.
The appeal by the defendant Nesim Pinto from so much of the order dated December 4, 2001, as directed a hearing to aid in the disposition of that branch of the plaintiff's motion which was for an attorney's fee must be dismissed. That portion of the order is not appealable as of right because it does not decide that branch of the motion and does not affect a substantial right ( see CPLR 5701[a][2][v]; Jacoby, M.D., P.C. v. Loper Assoc., 249 A.D.2d 277), and leave has not been granted.
The plaintiff's motion for leave to reargue and renew was properly granted ( see Liss v. Trans Auto Systems, Inc., 68 N.Y.2d 15, 20). Upon reargument and renewal, the Supreme Court correctly granted that branch of the plaintiff's motion which was for summary judgment against Nesim Pinto. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof to establish the existence of a material issue of fact which require a trial ( see Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, supra). Here, the plaintiff established her entitlement to summary judgment as a matter of law on her fraudulent conveyance causes of action against Nesim Pinto. Nesim Pinto then failed to sustain his burden of raising a triable issue of fact ( see Zuckerman v. City of New York, supra).
Nesim Pinto's remaining contentions are without merit.
FLORIO, J.P., FEUERSTEIN, CRANE and RIVERA, JJ., concur.