1995 Birchall Avenue LLC v. Boodhoo

128 A.D.3d 504, 7 N.Y.S.3d 897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 2015
• Docket: 15128N 380198/14
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about August 14, 2014, which, inter alia, denied plaintiffs motion seeking the appointment of a temporary receiver, unanimously affirmed, without costs.

The court properly denied plaintiffs motion for the appointment of a temporary receiver pursuant to CPLR 6401. Plaintiff failed to make a clear evidentiary showing warranting the drastic remedy of appointment of a receiver (see Moran v Moran, 77 AD3d 443, 445 [1st Dept 2010]). Plaintiffs argument that it was it was not required to make the showing of necessity mandated by CPLR 6401 (a) because the mortgage should be construed under Real Property Law § 254 (10) to authorize the appointment of a receiver, was not properly raised below (see Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992]). Concur — Friedman, J.P., Saxe, Richter and ManzanetDaniels, JJ.