Supreme Court, Appellate Division, Second Department, New York.
REPUBLIC NATIONAL BANK OF NEW YORK, Appellant,v.Sylvia GREENWALD, et al., etc., Defendants,Public Equities Corp., et al., Respondents.
July 6, 1987.
In action to set aside conveyance of real property and mortgages, creditor appealed from orders of the Supreme Court, Nassau County, Kelly and Robbins, JJ. The Supreme Court, Appellate Division, held that mortgages which guarantors executed on their home did not constitute fraudulent conveyances as against creditor on ground that none of the monies which were received in exchange for the mortgages were personally received by guarantors.
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Mortgages which guarantors executed on their home did not constitute fraudulent conveyances as against creditor on ground that none of the monies which were received in exchange for the mortgages were personally received by guarantors; mortgages were given in exchange for fair consideration which was paid to corporation owned solely by guarantors who had personally guaranteed payment to creditor of loans made to corporation; thus, assets of guarantors were not depleted at expense of creditor. McKinney's Debtor and Creditor Law § § 272- 278. **544 Grutman Miller Greenspoon & Hendler, New York City (Richard E. Hahn, of counsel), for appellant.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum, of counsel; Ira Levine, on the brief), for respondent Public Equities Corp.
Jaspan, Ginsberg, Ehrlich, Reich & Levin, Garden City (A. Thomas Levin, of counsel), for respondent Clinton Capital Corp.
Before BROWN, J.P., and EIBER, KUNZEMAN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to set aside a conveyance of real property and certain mortgages, the plaintiff appeals from (1) so much of a judgment of the Supreme Court, Nassau County (Kelly, J.), dated March 7, 1986, as dismissed its complaint as against the defendant Clinton Capital Corporation (hereinafter Clinton), and awarded costs and disbursements to the defendant Public Equities Corp., and (2) an order of the same court (Robbins, J.), dated April 4, 1986, which denied its motion to amend the judgment **545 and retax the bill of costs and disbursements.
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that the order is affirmed; and it is further,
ORDERED that the defendant Clinton Capital Corporation is awarded one bill of costs.
The repayment of loans made by the plaintiff to National *541 Institutional Supply Corp. (hereinafter NIS), a family business owned by Murray Greenwald, was personally guaranteed by Murray Greenwald, his wife Sylvia Greenwald and his son Dennis Greenwald. In February 1983, subsequent to the making of those loans, Murray and Sylvia Greenwald executed a $200,000 mortgage on their home, which was ultimately assigned to Clinton as security for the repayment of a $200,000 loan made to Georgia National Textile (NY) Corp. (hereinafter Georgia), a corporation owned by Murray and Dennis Greenwald. In May 1983, (after Murray Greenwald died), Sylvia Greenwald executed a second mortgage in favor of Clinton onthe Greenwald home in the amount of $200,000, to secure the repayment of another $200,000 loan made to Georgia. The plaintiff's contention that the mortgages constituted fraudulent conveyances as against it (see, Debtor and Creditor Law § 273) because none of the moneys which were received in exchange for the mortgages given upon the Greenwald family home were personally received by Murray or Sylvia Greenwald is without merit. The mortgages were clearly given in exchange for fair consideration (see, Debtor and Creditor Law § 272) which was paid to a corporation owned solely by individuals who had personally guaranteed the repayment to the plaintiff of the loans made to NIS. Consequently, it cannot be said that the assets of the plaintiff's guarantors were depleted at the expense of the plaintiff (see, Debtor and Creditor Law § § 273-278). The other contentions raised by the plaintiff concerning the propriety of the judgment are without merit.
Moreover, we conclude that the plaintiff's motion to amend the judgment and retax the bill of costs and disbursements was properly denied.
517 N.Y.S.2d 544, 132 A.D.2d 540
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