Fattorusso v Burton

Summary

The Appellate Division, Third Department affirmed the denial of Anne Marie Fattorusso's motion for leave to renew her summary judgment motion in a fraudulent-transfer action. The court held that plaintiff's failure to submit evidence addressing fair consideration and insolvency under the former Debtor and Creditor Law constituted a lack of due diligence, and that reliance on the subsequently enacted Uniform Voidable Transactions Act did not provide reasonable justification. The court concluded that Supreme Court providently exercised its discretion in denying renewal.

Holdings

1. Leave to renew was properly denied because plaintiff failed to provide a reasonable justification for omitting evidence addressing all dispositive elements on the original motion. A renewal motion cannot be used as a second chance to cure a lack of due diligence.
2. The February 2019 conveyance was governed by former Debtor and Creditor Law article 10 rather than the UVTA enacted in April 2020.

Questions Presented

1. Whether plaintiff satisfied CPLR 2221(e) requirements for renewal by presenting newly obtained evidence and a reasonable justification for not submitting it on the original summary-judgment motion.
2. Whether plaintiff's reliance on the Uniform Voidable Transactions Act excused her failure to present evidence addressing fair consideration and insolvency under the law applicable to the February 2019 conveyance.
3. Whether Supreme Court abused its discretion in denying leave to renew.

Disposition

affirmed