Respondent AI was not entitled to reargument. "Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided ... or to present arguments different from those originally asserted" (William P. Pahl Equip. Corp. v Kassis, 182 A.D.2d 22, 27 [1st Dept 1992], lv dismissed in part and denied in part 80 N.Y.2d 1005 [1992]). Although AI properly preserved the statute of limitations as an affirmative defense in its answer (CPLR 3018 [b]; see Scholastic Inc. v Pace Plumbing Corp., 129 A.D.3d 75, 85 [1st Dept 2015]), it never argued that petitioner's claims were barred by the applicable statute of limitations (see Derico v City of New York, 66 A.D.2d 740 [1st Dept 1978]; Garza v 508 W. 112th St., Inc., 22 Misc.3d 920, 929 [Sup Ct, NY County 2008]), nor did it cite Limited Liability Company Law § 508 (c), which it raised for the first time on its motion to reargue. Contrary to AI's contention, and the motion court's reasoning on reargument, the statement of AI's CEO that "[b]y May 2009, all of the units were sold and the most recent distribution made by W Squared to AI occurred in 2007," was insufficient to support a
The three-year limitation period imposed by Limited Liability Company Law § 508 (c) does not override the six-year statute of limitations for fraudulent conveyance claims brought under the Debtor and Creditor Law, since the plain language of section 508 indicates that the statute applies to members of an LLC, holding them "liable to the limited liability company" for wrongful distributions (see Limited Liability Company Law § 508 [b]; Lyman Commerce Solutions, Inc. v Lung, 2015 WL 1808693, *5, 2015 US Dist LEXIS 51447, *13 [SD NY, Apr. 20, 2015, No. 12 Civ 4398 (TPG)]). The statute does not address the claims of outside creditors (277 Mott St., LLC v Fountainhead Constr., LLC, 2012 NY Slip Op 30185[U], *9-10 [Sup Ct, NY County 2012]).
In view of our holding as to Limited Liability Company Law § 508 (c), we find that petitioner's claim under Debtor and Creditor Law § 273-a was timely, and AI failed to raise an issue of fact in this regard. Even if, as AI contends, its CEO's affidavit "confirmed" that the final distribution by W Squared occurred in March 2007, rather than 2011, the statute of limitations would not have begun to run in 2007 on petitioner's claim under Debtor and Creditor Law § 273-a, since the judgment in the personal injury action was not entered until November 2011 (see Coyle v Lefkowitz, 89 A.D.3d 1054, 1056 [2d Dept 2011]).
Petitioner sustained his burden of proof on his claims for actual fraud under Debtor and Creditor Law § 276 (see Marine Midland Bank v Murkoff, 120 A.D.2d 122, 126 [2d Dept 1986], appeal dismissed 69 N.Y.2d 875 [1987]). Although "fraudulent intent, by its very nature, is rarely susceptible to direct proof and must be established by inference from the circumstances surrounding the allegedly fraudulent act" (id. at 128), we find sufficient "badges of fraud" to support petitioner's first cause of action for fraudulent conveyance under Debtor and Creditor Law § 276. For example, respondents were the sole members of W Squared, the judgment debtor, no adequacy of consideration has been shown, W Squared was aware of petitioner's claim in the personal injury action, and W Squared is unable to pay the judgment, as it has informed petitioner that it has no funds remaining with which to do so (see Matter of CIT Group/ Commercial Servs., Inc. v 160-09 Jamaica Ave. Ltd. Partnership, 25 A.D.3d 301, 303 [1st Dept 2006]). AI failed to provide any evidence to negate the inferences of intent. The record also established that despite the statement of AI's CEO that AI did
We have considered AI's remaining contentions and find them unavailing.
