Justice David Schmidt
Wife Cohen-Fleisher moved for dismissal of Promenade Nursing Home’s fraud complaint. Promenade sought to recover $28,840 for room, board and services provided to her late husband, Irwin, before his death in 2011. It asserted claims alleging defendant fraudulently transferred Irwin’s interest in the marital home intending to defraud Promenade from collecting debts due, seeking to set aside the conveyance as it violated Debtor and Creditor Law (DCL). Defendant admitted that Irwin put her on the deed to their marital home in 2009 for no consideration to refinance their house in contemplation of retirement. Defendant sought dismissal arguing there was no fraudulent conveyance as it did not render Irwin insolvent under the DCL. The court found dismissal of Promenade’s fraud claim was warranted as the 2009 deed transfer did not render Irwin insolvent, but created a tenancy by the entirety, in which Irwin owned a coexistent interest in the home, and same was not without monetary value. Also, it found the circumstances accompanying the subject debt’s creation precluded any finding of an intent to defraud as Promenade failed to explain how defendant could have intentionally thwarted its ability to collect on yet non-existent debt.
