Battaglia v. Puglisi

Appeal from an order of the Supreme Court at Special Term, entered in Broome Comity, which denied defendants’ motion for summary judgment in an action to set aside a conveyance of real property from plaintiff’s intestate to himself and defendants, as joint tenants with right of survivorship, executed by plaintiff’s intestate some seven months before his death and recorded thereafter. The complaint alleges that the conveyance was (1) in fraud of creditors and (2) an illusory transfer to deprive the grantor’s widow of any interest in his estate. As to the first cause of action, there exist factual issues requiring trial, including that as to the existence of an indebtedness of decedent to the State of New York in an amount exceeding his untransferred assets, for maintenance of decedent’s widow in a State institution; this being dependent in part upon the additional factual question of decedent’s financial ability (Mental Hygiene Law, § 24, subd. 2; Code Grim. Pro., § 926-b). Under the second cause of action, unresolved factual issues exist as to any intent and agreement of the parties which may be proven in support of plaintiff’s contention that the conveyance was intended by them to constitute a disposition of,the property effective in no respect until decedent’s death. Order unanimously affirmed, with $10 costs. Present: — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.