By Rivera, J.P.; Hinds-Radix, Nelson, Iannacci, JJ. THE PEOPLE, ETC., res, v. TYMEL A. SMITH, app — (Index Nos. 106/16, 1606/16) Jan Murphy, Huntington, NY, for appellant, and appellant pro se. Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent. Appeal by the defendant from two judgments of the Supreme Court, Nassau County (Angelo A. Delligatti, J.), both rendered January 23, 2017, convicting him of attempted robbery in the first degree under Indictment No. 106/16, and attempted promoting prison contraband in the first degree under Superior Court Information 1606/16, upon his pleas of guilty, and imposing sentences. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant. ORDERED that the motion of Jan Murphy for leave to withdraw as counsel is granted, and she is directed to turn over all papers in her possession to the appellant’s new counsel assigned herein; and it is further, ORDERED that Steven A. Feldman, 1129 Northern Blvd., Suite 404, Manhasset, New York, 11030, is assigned as counsel to prosecute the appeal; and it is further, ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further, ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated August 9, 2018, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers (including a certified transcript of the proceedings) and on the briefs of the parties. The parties are directed to file one original and five duplicate hard copies, and one digital copy, of their respective briefs, and to serve one hard copy on each other (see 22 NYCRR 1250.9[a][4]; [c][1]). The brief submitted by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738) is deficient in that it fails to adequately analyze potential legal issues, including whether a nonfrivolous claim exists as to the excessiveness of the consecutive sentences imposed (see People v. Lorenzo-Perez, 181 AD3d 823, 824). With no citations to relevant legal authority, the brief inaccurately states that the Supreme Court was mandated to sentence the defendant to the maximum terms of imprisonment (see People v. Stokes, 95 NY2d 633, 639). Since the brief does not demonstrate that assigned counsel fulfilled her obligations under Anders v. California, we must assign new counsel to represent the defendant (see Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 258). RIVERA, J.P., HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.
By Dillon, J.P.; Lasalle, Connolly, Iannacci, JJ. TUDOR & SON GENERAL CONTRACTING, INC., app, v. VIOLETA KANDOV, ET AL., res — (Index No. 715258/17) Tsyngauz & Associates, P.C., New York, NY (Yevgeny Tsyngauz and Simon I. Malinowski of counsel), for appellant. Jason M. Baxter, New York, NY, for respondents. In an action to set aside a conveyance as fraudulent pursuant to Debtor and Creditor Law former §273-a, the plaintiff appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered April 19, 2018. The order, insofar as appealed from, denied the plaintiff’s cross motion pursuant to CPLR 3211(c) for summary judgment on the complaint. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff, Tudor & Son General Contracting, Inc. (hereinafter Tudor), commenced this action against the defendants, spouses Violeta Kandov and Albert Y. Dayan, to set aside a 2008 conveyance of real property from Kandov alone to Kandov and Dayan “as husband and wife” pursuant to Debtor and Creditor Law §273-a (repealed effective Apr. 4, 2020 [L 2019, ch 580, §2]). The defendants moved, inter alia, to dismiss the complaint as time-barred, and Tudor cross-moved pursuant to CPLR 3211(c) for summary judgment on the complaint. By order entered April 19, 2018, the Supreme Court, among other things, denied that branch of the defendants’ motion which was to dismiss the complaint as time-barred, and denied Tudor’s cross motion for summary judgment. Tudor appeals from so much of the order as denied its cross motion. Pursuant to Debtor and Creditor Law former §273-a, “[e]very conveyance made without fair consideration when the person making it is a defendant in an action for money damages or a judgment in such an action has been docketed against him, is fraudulent as to the plaintiff in that action without regard to the actual intent of the defendant if, after final judgment for the plaintiff, the defendant fails to satisfy the judgment.” Fair consideration exists “[w]hen in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith property is conveyed or an antecedent debt is satisfied” or “[w]hen such property, or obligation is received in good faith to secure a present advance or antecedent debt in [an] amount not disproportionately small as compared with the value of the property, or obligation obtained” (Debtor and Creditor Law former §272[a], [b]; see Matter of BSL Dev. Corp. v. Aquabogue Cove Partners, 212 AD2d 694, 695-696). “The question of what constitutes fair consideration is generally one of fact, [dependent upon] the circumstances of the particular case” (Farmers Prod. Credit Assn. of Middletown v. Taub, 121 AD2d 681, 682). Here, Tudor established its prima facie entitlement to summary judgment with evidence that the conveyance was effected during the pendency of a prior action for a money judgment in which Kandov was the defendant, that Tudor was successful in obtaining a money judgment against Kandov in that prior action which remains unpaid, and that the conveyance was made without fair consideration (see Debtor and Creditor Law former §273-a; Matter of BSL Dev. Corp. v. Aquabogue Cove Partners, 212 AD2d at 695-696). In opposition, the defendants raised a triable issue of fact as to whether the conveyance was supported by fair consideration (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). The defendants submitted evidence that the conveyance was effected in exchange for, and simultaneously with, the transfer of an adjoining property owned by Kandov’s father and Dayan, to Kandov and Dayan, “as husband and wife.” This evidence is sufficient to raise a triable issue of fact as to whether the challenged conveyance was supported by fair consideration (see Debtor and Creditor Law former §272; Matter of BSL Dev. Corp. v. Aquabogue Cove Partners, 212 AD2d 695-696; Farmers Prod. Credit Assn. of Middletown v. Taub, 121 AD2d 681). The parties’ remaining contentions either are without merit or have been rendered academic. DILLON, J.P., LASALLE, CONNOLLY and IANNACCI, JJ., concur.
