The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72 were read on this motion to/for SUMMARY JUDGMENT. DECISION + ORDER ON MOTION The motion by plaintiff for summary judgment is denied. Background Plaintiff commenced this action as part of an effort to satisfy a 2017 judgment against Big Apple Grocery Corp. (the “Grocery”). She claims that the owner of the Grocery transferred the name and good will of its grocery store to defendant Big Apple Food Market Corp. (the “Market”) for no consideration. Plaintiff argues that the Debtor and Creditor Law does not require that there be an intent to defraud and all she needs to show is that the transfer was made without fair value and that the judgment remains unsatisfied. In opposition, Sadek Ziad (the manager and minority owner of the Market) claims that the Market opened for business in November 2015. He claims that he used to work at the Grocery as a manager and as an officer of the corporation. Mr. Ziad explains that he traveled to Yemen in June 2014 and returned in November 2014 to find that the landlord where the Grocery was located had closed down the store for non-payment of rent. He insists that the store was vacant and he was unemployed. Mr. Ziad maintains that he saw that a retail space near the Grocery was available and that he opened the Market (with help from his uncle) in November 2015 with equipment that was purchased from wholesale vendors with money he or his father provided. He points to copies of the bills and receipts he provided during discovery for the equipment. Mr. Ziad emphasizes that when he returned to the Grocery in 2014, it was completely vacant. In reply, plaintiff claims that because defendants did not submit a counterstatement of material facts, the Court should deem plaintiff’s alleged facts as admitted. She insists the two businesses operated the same way, are located one block apart and that no consideration was paid for the name Big Apple. Discussion “A party moving for summary judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in the moving party’s favor. Thus, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. If the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action” (Jacobsen v. New York City Health and Hosps. Corp., 22 NY3d 824, 833, 988 NYS2d 86 [2014] [internal quotations and citations omitted]). “The version of section 273-a that was in effect at the time of the conveyances at issue provided that “[e]very conveyance made without [a] 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 [or her], 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” (Debtor and Creditor Law former §273-a). Thus, to establish a cause of action for violation of former section 273-a, the plaintiff was required to prove the following three elements: (1) that the conveyance was made without fair consideration; (2) that the conveyor is a defendant in an action for money damages or that a judgment in such action has been docketed against him, and (3) that defendant has failed to satisfy the judgment” (Diaz v. 297 Schaefer St. Realty Corp., 195 AD3d 794, 795-76, 145 NYS3d 813(Mem) [2d Dept 2021] [internal quotations and citations omitted]). As an initial matter, plaintiff is correct that defendants should have uploaded a counterstatement of material facts. However, the Court, in its discretion, can overlook that error given that this requirement is a relatively recent rule and there is no question that defendants dispute the facts presented by plaintiff. The affidavit of Mr. Ziad raises numerous issues of fact that compels the Court to deny the motion. Notwithstanding defendants’ failure to follow this procedural rule, the fact is that plaintiff did not meet its prima facie burden for summary judgment. Plaintiff did not adequately meet her burden to show that there was a conveyance at all. In support of this claim, she cited Mr. Ziad’s deposition testimony where he admits that he did not pay anything for the name Big Apple (NYSCEF Doc. No. 55 at 16). But Mr. Ziad insisted that he did not ask for permission from the owner of the Grocery to use the words “Big Apple” for his business because “it is different. I don’t need to ask him (id. at 16). He added that “I love New York City. It is called the Big Apple and that is why I put the store Big Apple Food Market. I don’t call it Big Apple Grocery” (id. at 16-17). While there are certainly some connections between the Grocery and the Market, plaintiff did not sufficiently establish, as a matter of law, that there was a conveyance sufficient to support a cause of action under the former Debtor and Creditor Law §273-a. The statement of facts submitted by plaintiff claims that there should have been some consideration paid for the name Big Apple. However, plaintiff did not point to a sufficient reason for why the Market should have necessarily paid something for the moniker Big Apple. It is axiomatic that many businesses use the words Big Apple across New York City — the facts alleged do not support plaintiff’s contention that there was a transfer without valid consideration sufficient to grant her motion. Of course, plaintiff can argue at trial that the circumstantial evidence supports her theory that there was a conveyance without any consideration. But, on these papers, plaintiff did not meet her burden. For instance, there is no evidence that the Grocery transferred any assets (such as equipment or money) to the Market. And while Mr. Ziad admits he had some role with the Grocery, it has not been shown that this is a situation where he controlled one entity, dissolved it, and then opened up another grocery store one block away. Mr. Ziad claims he worked at (and was a minority owner in) the Grocery, left for Yemen to deal with some family issues and then returned to find that the Grocery had closed for not paying the rent. He then purportedly opened up the Market because he needed a job and saw a good opportunity. A fact finder must consider whether they believe his story. Accordingly, it is hereby ORDERED that the motion by plaintiff for summary judgment is denied. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 11, 2022
