Petrocelli v. Petrocelli Elec. Co., Inc.

Petrocelli v Petrocelli Elec. Co., Inc. (2014 NY Slip Op 07303)

Petrocelli v Petrocelli Elec. Co., Inc.

2014 NY Slip Op 07303

Decided on October 28, 2014

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 October 28, 2014
Friedman, J.P., Renwick, Manzanet-Daniels, Feinman, Kapnick, JJ.

13327 651605/13

[*1] Clement Petrocelli, Petitioner-Respondent,

v

Petrocelli Electric Co., Inc., et al., Respondents-Appellants, Allan Briteway Electrical Services, Inc., etc., Transferee-Appellant.

Davidoff Hutcher & Citron LLP, New York (Michael Wexelbaum of counsel), for appellants.

Anderson Kill P.C., New York (Rachel Kierych of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered September 5, 2013, which, to the extent appealed from as limited by the briefs, in this proceeding under CPLR article 52, directed that the judgment debtors would have the burden of proof at the turnover hearing, unanimously reversed, on the law, without costs, to direct that petitioner judgment creditor will have the burden of proof.

The burden of proof in a turnover proceeding rests with the judgment creditor to establish that contested transfers were without adequate consideration or otherwise fraudulent (see National Communications Corp. v Bloch, 259 AD2d 427 [1st Dept 1999]). Nevertheless, petitioner is entitled to broad discovery to assist in prosecuting the claims, particularly since the evidence is largely within the possession of the judgment debtors and the transferees (see id.; Gryphon Dom. VI, LLC v GBR Info. Servs., Inc., 29 AD3d 392 [1st Dept 2006]; CPLR 5223).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 28, 2014

CLERK