Berkowitz v. Berkowitz — 67 N.Y.2d 737

Majority

p. 737

Phyllis Berkowitz, Appellant, v Howard Berkowitz et al., Respondents.

Argued January 10, 1986;

decided February 19, 1986

p. 739

APPEARANCES OF COUNSEL

Clifton M. Tamsett, Jr., and Frank W. Getman for appellant.

Joseph T. Pondolfino, Jr., for respondents.

OPINION OF THE COURT

Order reversed, without costs, and matter remitted to the Appellate Division, Third Department, for review of the facts and exercise of discretion. We agree with the dissenters below that plaintiff adduced proof legally sufficient to constitute a prima facie cause of action based on Debtor and Creditor Law § 275, and that the majority erred in holding that, as a matter of law, defendant was prejudiced by the trial court’s amendment of the complaint to conform to such proof. We remit to the Appellate Division for it to determine whether the trial court’s verdict in plaintiffs favor on that cause of action was against the weight of the evidence and to exercise its discretion with respect to the amendment.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.