1250 Broadway Parking Corp. v. 38-32 Associates

—Orders, Supreme Court, New York County (Stephen Crane, J.), entered June 13, 1995 and February 2, 1996, which, insofar as appealed from, dismissed defendant’s fifth and seventh counterclaims for tortious interference with contract, denied defendant’s motion for partial summary judgment on its fourth and sixth counterclaims for fraudulent conveyance, granted defendant’s request for CPLR 3126 relief only to the extent of directing plaintiffs to comply with defendant’s discovery demand, and granted defendant’s motion for reargument, and, upon reargument, adhered to the original determination except to the extent of granting defendant partial summary judgment in the amount of $7,886 on its fourth and sixth counterclaims, unanimously modified, on the law, to grant defendant partial summary judgment on the balance of its fourth and sixth counterclaims in the amount of $39,088.51, and otherwise affirmed, without costs.

Defendant landlord’s counterclaims against plaintiff subtenant for tortious interference with contract were properly dismissed, it being undisputed that plaintiff vacated the premises before the deadline for the new tenant either to take possession of the premises or to cancel its lease with defen*189dant, and that the new tenant did not breach its lease with defendant. However, defendant as a matter of law established that the checks totaling $39,088.51 were fraudulent conveyances in that they were made by plaintiff’s principals to themselves without fair consideration (Debtor and Creditor Law §§ 273-a, 274) and rendered plaintiff insolvent (Debtor and Creditor Law § 273), and we modify the grant of partial summary judgment accordingly. Plaintiff was properly given an opportunity to comply with defendant’s discovery demand, there being no clear showing that the failure to disclose in the first instance was willful (CPLR 3126). Concur—Ellerin, J. P., Nardelli, Rubin and Mazzarelli, JJ.