4536. CDR CRANCES S.A.S., plf-res, v. FIRST HOTELS & RESORTS INVESTMENTS, INC., a/k/a LES PREMIERS INVESTISSEMENTS HOTELIERS & VILLEGIATURE, INC., def-ap — Stern Tannenbaum & Bell LLP, New York (David S. Tannenbaum of counsel), for ap — Kellner Herlihy Getty & Friedman, LLP, New York (Douglas A. Kellner of counsel), for res — Order, Supreme Court, New York County (Lawrence K. Marks, J.), entered on or about February 7, 2017, which denied defendant’s motion for summary judgment dismissing the claims for fraudulent transfer, unjust enrichment, and attorneys’ fees pursuant to Debtor and Creditor Law §276-a, unanimously modified, on the law, to grant the motion as to the unjust enrichment claims, and otherwise affirmed, without costs.
The motion court correctly found that the transfer into defendant’s Union Planters bank account and the pre-January 7, 2004 transfer into its HSBC account did not constitute a new theory of liability. All along, plaintiff’s theory of liability has been a fraudulent transfer from nonparty Whitebury Shipping Time Sharing, Ltd. to defendant; thus, the key is Whitebury’s intent to hinder, delay, or defraud plaintiff or its predecessor (see Debtor and Creditor Law §276). Because it is difficult to prove actual intent, plaintiff is permitted to rely on badges of fraud (see Wall St. Assoc. v. Brodsky, 257 AD2d 526, 529 [1st Dept 1999]). Most of these badges, such as the relationship between Whitebury and defendant, whether the transfers were in the ordinary course of business, whether defendant gave Whitebury any consideration, and whether Whitebury retained any control of the money it transferred to defendant, are within defendant’s knowledge; defendant does not need discovery on these points. As for Whitebury’s knowledge of plaintiff’s (or its predecessor’s) claim and Whitebury’s inability to pay it, that factor is the same regardless of whether the fraudulent transfer is only the January 15, 2004 transfer mentioned in plaintiff’s interrogatory responses or all three transfers into defendant’s bank accounts.
