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CANTOR FITZGERALD & CO. v. 8an CAPITAL PARTNERS MASTER FUND, L.P., 132 A.D.3d 402 (2015)

Court: Supreme Court of New York Number: innyco20151002489 Visitors: 12
Filed: Oct. 01, 2015
Latest Update: Oct. 01, 2015
Summary: Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 16, 2015, which denied defendant Philip Eytan's motion to dismiss the complaint as against him, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. The motion court should have granted defendant's motion. The complaint alleges that defendant knew of and participated in the alleged fraudulent transfer of assets but fa
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Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 16, 2015, which denied defendant Philip Eytan's motion to dismiss the complaint as against him, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The motion court should have granted defendant's motion. The complaint alleges that defendant knew of and participated in the alleged fraudulent transfer of assets but fails to allege that he is the transferee, and further fails to allege, in anything other than conclusory fashion, that he benefited from the transfer, as required to state a cause of action for fraudulent conveyance (Debtor and Creditor Law §§ 273, 276; Federal Deposit Ins. Corp. v Porco, 75 N.Y.2d 840, 842 [1990]; Symbax, Inc. v Bingaman, 219 A.D.2d 552, 553-554 [1st Dept 1995]). Moreover, while defendant is an officer of both defendant transferor and transferee corporations, "receipt of a salary from the transferee corporation as an officer of the corporation is not sufficient to render the officer a transferee or beneficiary of the transfer" (D'Mel & Assoc. v Athco, Inc., 105 A.D.3d 451, 452-453 [1st Dept 2013] [internal quotation marks and citation omitted]). As there are no other nonconclusory allegations sufficient to hold defendant individually liable for the fraudulent transfer, the complaint should be dismissed as against him (see Riback v Margulis, 43 A.D.3d 1023, 1023 [2d Dept 2007]).

Source:  Leagle

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