Butler v. Gibbons

225 A.D.2d 335, 638 N.Y.2d 634, 638 N.Y.S.2d 634, 1996 N.Y. App. Div. LEXIS 2103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1996
• Status: Published

Opinion

We agree with the IAS Court that the documents and deposition testimony adduced by plaintiff constituted "substantial proof’ of his "apparent interest” (CPLR 6401 [a]) in the subject properties as defendant’s joint venturer, and that a danger of material injury to the property was sufficiently demonstrated. Defendant’s deposition testimony indicated that he had deposited rents in his personal bank account and transferred funds from corporate and tenant security accounts to his personal account, lacked knowledge of the mortgage status of the properties and the physical maintenance of the premises, and failed to account to plaintiff for the income and profits and otherwise has treated the property as his own rather than a joint asset. Further, the corporate defendants who own the properties have filed for bankruptcy (Somerville House Mgt. v American Tel. Syndication Co., 100 AD2d 821; Gimbel v Reibman, 78 AD2d 897; Nelson v Nelson, 99 AD2d 917). Concur— Ellerin, J. P., Rubin, Ross, Williams and Tom, JJ.