Frybergh v. Weissman, 145 A.D.2d 531, 536 N.Y.S.2d 465 (N.Y.A.D. 2 Dept., Dec 19, 1988) (NO. 3252E, 3253E)

Supreme Court, Appellate Division, Second Department, New York.
George M. FRYBERGH, Appellant,v.Isidore WEISSMAN, et al., Respondents.

Dec. 19, 1988.

 In action to set aside allegedly fraudulent conveyance, the Supreme Court, Suffolk County, Jones, J., dismissed complaint against defendant and cancelled plaintiff's notice of pendency.   On appeal, the Supreme Court, Appellate Division, held that:  (1) action to set aside allegedly fraudulent conveyance was properly dismissed, as plaintiff had obtained no judgment against any of the defendants, and (2) no implied private cause of action existed under Martin Act.
 Affirmed.

West Headnotes
[1] Fraudulent Conveyances  64(1)186k64(1) Most Cited Cases
Action to set aside allegedly fraudulent conveyance was properly dismissed, where plaintiff had obtained no judgment against any of the defendants. McKinney's Debtor and Creditor Law §  273-a.
[2] Securities Regulation  297349Bk297 Most Cited Cases
No implied private cause of action exists under Martin Act.  McKinney's General Business Law §  352 et seq. **465 Murray Rudman, Southampton, for appellant.
 Anthony B. Tohill, P.C., Riverhead, for respondent Maurice H. Kouffman.
 Anthony T. Conforti, Riverhead, for respondents Isidore Weissman, Arthur Levin, Joan Brill, Joseph T. Russo, Joseph Neuberger, Gertrude Rudin and East Hampton House, Inc.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and Ira Levine, of counsel), for respondents Leonard I. Ackerman Hampton House Ventures and East Hampton House Owners, Ltd.

 Before MANGANO, J.P., and BRACKEN, KUNZEMAN and BALLETTA, JJ.


 MEMORANDUM BY THE COURT.
 In an action, inter alia, to set aside an allegedly fraudulent conveyance, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Jones, J.), entered May 21, 1987, which upon the motion of the defendant East Hampton House Owners, Ltd., and the motion of Leonard I. Ackerman and Hampton House Ventures, dismissed the complaint pursuant to CPLR 3211(a)(7) against all the defendants and cancelled the plaintiff's notice of pendency;  and (2) an order of the same court entered May 28, 1987, which, upon the motion of the defendant Maurice H. Kouffman to dismiss the complaint insofar as asserted against him, adhered to its earlier order dismissing the complaint against all defendants.
 ORDERED that the orders are affirmed, with costs.
 [1] In 1981, the plaintiff commenced an action to recover salary and commissions allegedly due him for work as a real estate salesman on behalf, inter alia, of the defendants Maurice H. Kouffman and East Hampton House, Inc. By deeds dated March 31, 1983, the defendant East Hampton House, Inc. conveyed a parcel of real property to the defendant Hampton House Ventures, which in turn conveyed the property to the defendant East Hampton House Owners, Ltd. Prior to the conclusion of his action to recover salary and commissions, the plaintiff commenced this action alleging, inter alia, that these conveyances were fraudulent as to him pursuant to Debtor and Creditor Law §  273-a.   The plaintiff's action to recover salary and commissions was ultimately dismissed (see, Frybergh v. Kouffman, 145 A.D.2d 529, 536 N.Y.S.2d 466).
 Debtor and Creditor Law §  273-a provides that "every conveyance made without **466 fair consideration when the person making it is a defendant in an action for money damages or a judgment in such an action has been docketed against him, is fraudulent as to the plaintiff in that action without regard to the actual intent of the defendant if, after final judgment for the plaintiff, the defendant fails to satisfy the judgment" (emphasis supplied).
 As the existence of an unsatisfied judgment is an essential element of this action (Cohan v. Misthopoulos, 118 A.D.2d 530, 499 N.Y.S.2d 157; Schoenberg v. Schoenberg, 113 Misc.2d 356, 449 N.Y.S.2d 137, mod. on other grounds 90 A.D.2d 827, 456 N.Y.S.2d 14) and the plaintiff has obtained no *532 judgment against any of the defendants, his first cause of action was properly dismissed.
 [2] The plaintiff's second cause of action, alleging that defendants violated General Business Law article 23-A, known as the Martin Act, by filing a cooperative apartment offering plan containing a false statement, was also properly dismissed since no implied private cause of action exists under the Martin Act (see, CPC Intl. v. McKesson Corp., 70 N.Y.2d 268, 519 N.Y.S.2d 804, 514 N.Y.S.2d 116).
 The plaintiff's remaining claims for attorney's fees and punitive damages must also fall because they are dependent upon the already dismissed claims.
536 N.Y.S.2d 465, 145 A.D.2d 531
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