BBCN Bank v. 12th Avenue Restaurant Group Inc.

BBCN Bank v 12th Ave. Rest. Group Inc. (2017 NY Slip Op 04229)

BBCN Bank v 12th Ave. Rest. Group Inc.

2017 NY Slip Op 04229

Decided on May 30, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 30, 2017
Acosta, P.J., Friedman, Andrias, Webber, Gesmer, JJ.

4139 159880/13

[*1]BBCN Bank, formerly known as Nara Bank, Plaintiff-Respondent-Appellant,

v

12th Avenue Restaurant Group Inc., et al., Defendants, Robert N. Swetnick, Defendant-Appellant-Respondent.

Lewis Brisbois Bisgaard & Smith, LLP, New York (Jamie R. Wozman of counsel), for appellant-respondent.

Harfenist Kraut & Perlstein LLP, Lake Success (Andrew C. Lang of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 16, 2016, which denied defendant Robert N. Swetnick's motion for summary judgment dismissing the complaint as against him, and denied plaintiff's motion for summary judgment on the third and tenth causes of action, unanimously modified, on the law, to grant Swetnick's motion, and otherwise affirmed, without costs. The clerk is directed to enter judgment accordingly.

On appeal, plaintiff concedes that it seeks to hold Swetnick liable for aiding and abetting a fraudulent conveyance, not for aiding and abetting fraud generally. The cause of action for aiding and abetting a fraudulent conveyance also should have been dismissed, because there is no cause of action for aiding and abetting a fraudulent conveyance against a person, such as Swetnick in this case, who is alleged merely to have assisted in effecting the transfer, in a professional capacity, and who is not alleged to have been a transferee of the assets or to have benefited from the transaction (see Federal Deposit Ins. Corp. v Porco, 75 NY2d 840, 842 [1990]; Cantor Fitzgerald & Co. v 8am Capital Partners Master Fund, L.P., 132 AD3d 402, 402 [1st Dept 2015]; Estate of Shefner v De La Beraudiere, 127 AD3d 442 [2015]; Cahen-Vorburger v Vorburger, 41 AD3d 281, 282 [1st Dept 2007]; Gallant v Kanterman, 198 AD2d 76, 80 [1st Dept 1993]; see also Roselink Investors, L.L.C. v Shenkman, 386 F Supp 2d 209, 226-227 [SD NY 2004]; Goren v Quantum Chemical Corp., 832 F Supp 728, 736 [SD NY 1993], affd 99 F3d 401 [2d Cir 1995]; In re Parker, 399 BR 577, 580-581 [Bankr ED NY 2009]). Since the [*2]substantive claim against Swetnick fails as a matter of law, the tenth cause of action, for attorney's fees pursuant to Debtor and Creditor Law § 276-a, must also be dismissed as against him.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 30, 2017

CLERK