Domansky v. Berkovitch

Appellate Division of the Supreme Court of New York

Domansky v. Berkovitch

259 A.D.2d 331, 687 N.Y.S.2d 41, 1999 N.Y. App. Div. LEXIS 2753

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 1999

StatusPublished

This text of 259 A.D.2d 331 (Domansky v. Berkovitch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Domansky v. Berkovitch, 259 A.D.2d 331, 687 N.Y.S.2d 41, 1999 N.Y. App. Div. LEXIS 2753 (N.Y. Ct. App. 1999).

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Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered April I, 1997, in favor of the temporary receiver and against defendants-appellants in the amounts of $354,687.32 and $260,579.88, and order, same court and Justice, entered July 20, 1998, which denied defendants-appellants’ motion to vacate such judgment, unanimously affirmed, without costs.

Defendants did not appeal from the November 26, 1996 order directing them to pay the above amounts to the court-appointed receiver, and, since the judgment from which they appeal is nonfinal, such order is not brought up for review by the appeal from such judgment (CPLR 5501 [a] [1]). Thus, we limit review to the judgment and the order denying defendants’ motion to vacate the judgment, from which defendants have appealed.

The court properly granted the receiver’s motion to convert the November 26, 1996 order into a money judgment against defendants, such remedy being necessary to the accomplishment of the directives set forth in the order of appointment, and also serving to protect and preserve the subject construction projects during the pendency of the action. “[T]he powers and duties of the receiver appointed pursuant to the court’s equity powers are formulated as a matter of judicial discretion * * * and the court ‘is vested with inherent plenary power * * * to fashion any remedy necessary for the proper administration of justice.’” (64 B Venture v American Realty Co., 194 AD2d 504 [citations omitted]). Defendants’ motion to vacate the judgment was properly denied upon findings that although the buildings were operating, they had outstanding liabilities that the receiver could satisfy only by resort to the rent money, and that the individual defendant had overpaid his construction company, the corporate defendant, despite the existence of such liabilities. We have considered defendants’ other claims and find them to be unpersuasive. Concur — Ellerin, P. J., Tom, Mazzarelli and Andrias, JJ.

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Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered April I, 1997, in favor of the temporary receiver and against defendants-appellants in the amounts of $354,687.32 and $260,579.88, and order, same court and Justice, entered July 20, 1998, which denied defendants-appellants’ motion to vacate such judgment, unanimously affirmed, without costs.

Defendants did not appeal from the November 26, 1996 order directing them to pay the above amounts to the court-appointed receiver, and, since the judgment from which they appeal is nonfinal, such order is not brought up for review by the appeal from such judgment (CPLR 5501 [a] [1]). Thus, we limit review to the judgment and the order denying defendants’ motion to vacate the judgment, from which defendants have appealed.

The court properly granted the receiver’s motion to convert the November 26, 1996 order into a money judgment against defendants, such remedy being necessary to the accomplishment of the directives set forth in the order of appointment, and also serving to protect and preserve the subject construction projects during the pendency of the action. “[T]he powers and duties of the receiver appointed pursuant to the court’s equity powers are formulated as a matter of judicial discretion * * * and the court ‘is vested with inherent plenary power * * * to fashion any remedy necessary for the proper administration of justice.’” (64 B Venture v American Realty Co., 194 AD2d 504 [citations omitted]). Defendants’ motion to vacate the judgment was properly denied upon findings that although the buildings were operating, they had outstanding liabilities that the receiver could satisfy only by resort to the rent money, and that the individual defendant had overpaid his construction company, the corporate defendant, despite the existence of such liabilities. We have considered defendants’ other claims and find them to be unpersuasive. Concur — Ellerin, P. J., Tom, Mazzarelli and Andrias, JJ.

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Bluebook (online)

259 A.D.2d 331, 687 N.Y.S.2d 41, 1999 N.Y. App. Div. LEXIS 2753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domansky-v-berkovitch-nyappdiv-1999.

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