Mancuso v. Kambourelis

72 A.D.2d 636, 421 N.Y.S.2d 130, 1979 N.Y. App. Div. LEXIS 13772

Opinion

Appeal from an order of the County Court of Greene County, entered February 13, 1979, granting plaintiffs’ request for appointment of a receiver. Defendants purchased certain property, on which a restaurant was operated from plaintiffs and in return gave a purchase-money mortgage in the sum of $150,000. After defendants defaulted in the payment of amounts due for principal, interest and taxes, the instant foreclosure action was commenced on August 9, 1978. Thereafter, plaintiffs applied for and the court appointed, over defendants’ opposition, a receiver and fixed the sum of $2,000 as monthly rent. This appeal ensued. Basically, defendants contend that the court erred in appointing a receiver either pursuant to CPLR 6401 or section 1325 of the Real Property Actions and Proceedings Law. The mortgage in question, however, specifically authorized the appointment of a receiver on application of the mortgagee in an action to foreclose the mortgage. While such a clause authorizes the appointment of a receiver without notice and without regard to the adequacy of any security (Real Property Law, § 254, subd 10), a court of equity, in its discretion and under appropriate circumstances, may deny the application (Home Tit Ins. Co. v Scherman Holding Corp., 240 App Div 851; 15 Carmody-Wait 2d, § 92:476). On this record, we find no reason to disturb the court’s determination. The order should be affirmed. Order affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Mikoll, JJ., concur.