Ferrauiolo v. Wescott

— Order and judgment (one paper) of the Supreme Court, New York County (Burton S. Sherman, J.), entered February 26, 1991, which granted petitioner’s motion to direct respondent Sheriff to sell at public auction an airplane in partial satisfaction of a judgment against respondent Fernandez, unanimously affirmed, with costs.

Petitioner obtained a money judgment in an earlier fraud action against respondent Fernandez. Said fraud action arose when petitioner was induced to provide funds to respondent Fernandez for the purchase of two airplanes by said respondent’s fraudulent representation that the two planes would be sold for profit.

In this proceeding brought pursuant to CPLR 5239 to determine adverse claims and specifically the right to an airplane *472bought with petitioner’s funds, petitioner established that respondent Fernandez purchased the subject airplane with petitioner’s funds and registered the property in the name of his wife, respondent Donohue, in order to avoid liability. Neither respondent asserts anything to the contrary. Respondent Donohue, in this proceeding, failed to establish a right to the property superior to that of petitioner, Fernandez’ creditor (CPLR 5225 [b]; Debtor and Creditor Law §§ 276, 278, 279).

Finally, there is no basis for requiring a traverse hearing, there being no adequate showing or allegation that service was not properly made upon respondent Donohue. Concur— Sullivan, J. P., Milonas, Wallach, Kupferman and Smith, JJ.