Trustco Bank v. Pearl Mont Commons, LLC , 45 N.Y.S.3d 654 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 12, 2017 522173
________________________________
TRUSTCO BANK,
Respondent,
v
PEARL MONT COMMONS, LLC,
Defendant, MEMORANDUM AND ORDER
and
GERALYNN LYNN,
Appellant.
________________________________
Calendar Date: November 14, 2016
Before: McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.
__________
Geralynn Lynn, Orangeburg, appellant pro se.
McNamee, Lochner, Titus & Williams, PC, Albany (Francis J.
Smith of counsel), for respondent.
__________
Rose, J.
Appeal from an order of the Supreme Court (Buchanan, J.),
entered March 31, 2015 in Schenectady County, which denied
defendant Geralynn Lynn's motion for summary judgment dismissing
the complaint against her.
Plaintiff obtained two money judgments against John Lynn
(hereinafter Lynn), the husband of defendant Geralynn Lynn
(hereinafter defendant), totaling approximately $2.8 million. A
postjudgment deposition revealed that Lynn had used the assets of
his company, defendant Pearl Mont Commons, LLC (hereinafter PMC),
to pay for personal expenses and had transferred funds from PMC
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to defendant. As a result, plaintiff commenced this action
asserting, among other things, a cause of action against PMC and
defendant for fraudulent conveyances pursuant to Debtor and
Creditor Law § 274. Following joinder of issue, defendant moved
for dismissal of the complaint, alleging that she is a 50% owner
of PMC. Supreme Court ordered an immediate trial to determine
whether defendant could establish this assertion as a matter of
law (see CPLR 3211 [c]). Following the trial, Supreme Court
found issues of fact and, accordingly, denied defendant's motion
in its entirety. This appeal by defendant ensued.
Defendant's sole contention is that she put forth evidence
establishing that she is a 50% owner of PMC and, therefore,
Supreme Court erred in finding that issues of fact exist
regarding her ownership interest. Our review of the record,
however, confirms Supreme Court's finding that conflicting
evidence was adduced on this point and that issues of fact exist.
Although defendant produced bank documents which she signed as a
"[m]anager or [d]esignated [m]ember" of PMC, these documents are
equivocal as to defendant's purported ownership interest.
Defendant also proffered PMC's operating agreement that appears
to display her signature and list her as a 50% member, but
plaintiff adduced evidence calling into question the authenticity
of defendant's signature, as well as the authenticity of the
document itself. This proof, together with financial records
listing Lynn as PMC's owner and his postjudgment deposition
testimony in which he repeatedly affirmed that he was the sole
owner of PMC, precludes a determination, as a matter of law,
regarding defendant's ownership interest in PMC (see generally
Sherman v New York State Thruway Auth., 27 NY3d 1019, 1021-1022
[2016]). Finally, contrary to defendant's argument, Supreme
Court properly denied her request to admit the incomplete and
uncertified copies of PMC's tax records into evidence, as they
were not in admissible form (see CPLR 4540 [a], [b]).
Defendant's remaining contentions have been reviewed and
found to be without merit.
McCarthy, J.P., Garry, Mulvey and Aarons, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court