Eastbank, N. A. v. Malneut Realty Corp.

180 A.D.2d 442

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Tompkins, J.), entered May 9, 1991, which appointed a receiver in a mortgage foreclosure action, unanimously reversed, on the law and the facts, and the order is vacated, with costs.

In its memorandum decision underlying the order appealed from, the IAS court referred erroneously to plaintiffs purported "motion for summary judgment appointing a receiver”, whereas in fact the plaintiff did not request appointment of a receiver, and the defendant-appellant Malneut Realty Corp., the owner of the subject premises, did not want a receiver appointed. Plaintiff’s mortgage in the amount of $150,000 is the only lien on the subject building, which is worth several million dollars, and Malneut has since posted a $175,000 bond to secure plaintiff’s interest. Plaintiff did not satisfy its burden of making a clear evidentiary showing that appointment of a receiver was necessary to conserve the property and to protect plaintiff’s interests (Modern Collection Assocs. v Capital Group, 140 AD2d 594; Rabinowitz v Power, 131 App Div 892; CPLR 6401 [a]). Accordingly, the order appointing a temporary receiver was improvidently entered, and it is vacated herewith. Concur—Carro, J. P., Rosenberger, Wallach, Ross and Asch, JJ.