Appellate Division of the Supreme Court of New York, 1986

Wells Fargo Bank International v. Binabdulaziz

Wells Fargo Bank International v. Binabdulaziz
Appellate Division of the Supreme Court of New York · Decided April 4, 1986
119 A.D.2d 1003; 500 N.Y.S.2d 993; 1986 N.Y. App. Div. LEXIS 55939
Wells Fargo Bank International v. Binabdulaziz

Opinion of the Court

Order unanimously affirmed, without costs. Memorandum: Although Special Term erroneously imposed upon plaintiff the burden of showing by clear and convincing evidence that petitioner and defendants were parties to a fraudulent conveyance, there was no showing by plaintiff by any standard of proof of an "actual intent” by defendants under Debtor and Creditor Law § 276 to "hinder, delay, or defraud” it or that the conveyance was made without a fair consideration and rendered the transferor insolvent under Debtor and Creditor Law § 273. In the face of the proof that the transfer of funds constituted a loan that was repaid, plaintiff failed to sustain its burden under CPLR 6223 (b) of establishing that the conveyance was a fraudulent scheme concocted to hinder, delay or defraud it, as a known creditor of defendants, and to prevent satisfaction of a contemplated judgment (see, Merrill Lynch Futures v Kelly, 585 F Supp 1245, 1258; Laco X-Ray Sys. v Fingerhut, 88 AD2d 425, 431, appeal dismissed 58 NY2d 826; 7A Weinstein-Korn-Miller, NY Civ Prac ¶ 6223.05), or that it was made without a fair consideration. Moreover, plaintiff did not establish that the transferee of the conveyance was a gratuitous donee and in the absence of such proof the trial court’s determination not to impose a constructive trust should not be disturbed (see, McCall v Town of Middlebury, 52 AD2d 736). (Appeal from order of Supreme Court, Onondaga County, Lawton, J. — vacate levy.) Present — Dillon, P. J., Callahan, Doerr, Pine and Schnepp, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.