Opinion
5814–5815 Index 153945/14
02-22-2018
Ames RAY, Plaintiff–Appellant, v. Christina RAY, et al., Defendants–Respondents.
McLaughlin & Stern LLP, New York (Peter C. Alkalay of counsel), for appellant. Law Offices of Donald Watnick, New York (Donald E. Watnick ), for respondents.
McLaughlin & Stern LLP, New York (Peter C. Alkalay of counsel), for appellant.
Law Offices of Donald Watnick, New York (Donald E. Watnick ), for respondents.
Friedman, J.P., Sweeny, Kahn, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered June 28, 2016, awarding defendants sanctions against plaintiff, unanimously modified, on the law and the facts, to vacate the award of sanctions, and otherwise affirmed, without costs. As this Court's decision in the prior appeal indicates, the 2010 complaint was dismissed not on the merits but due to pleading defects (see Ray v. Ray, 108 A.D.3d 449, 970 N.Y.S.2d 9 [1st Dept. 2013] ). Therefore, the present complaint is not barred by the doctrines of res judicata or collateral estoppel ( Hodge v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL–CIO, 269 A.D.2d 330, 703 N.Y.S.2d 184 [1st Dept. 2000] ).
Nevertheless, the complaint was correctly dismissed for failure to state a cause of action. The petition lacks the factual allegations and evidence required to support the contention that Christina Ray fraudulently transferred funds to Guarnerious and Dechert LLP in violation of Debtor and Creditor Law § 273 see generally Jaliman v. D.H. Blair & Co. Inc., 105 A.D.3d 646, 647, 964 N.Y.S.2d 112 [1st Dept. 2013] ).
Similarly, the complaint does not plead intent to defraud sufficiently to support a claim under DCL § 276. The fraudulent conveyance claims are not pleaded in sufficient detail to satisfy the heightened particularity requirement of CPLR 3016[b] (see Ray, 108 A.D.3d at 451, 970 N.Y.S.2d 9 ). Additionally, plaintiff did not properly rely on the "badges of fraud" to show actual intent to defraud or hinder present or future creditors ( RTN Networks, LLC v. Telco Group, Inc., 126 A.D.3d 477, 478, 5 N.Y.S.3d 80 [1st Dept. 2015] ).
In light of our decision to grant the motion on the pleadings, the award of sanctions is vacated ( Omansky v. Lapidus & Smith, 273 A.D.2d 110, 111, 709 N.Y.S.2d 88 [1st Dept. 2000] ).