Martini v. Martini

Appellate Division of the Supreme Court of New York

Martini v. Martini

284 A.D.2d 510, 727 N.Y.S.2d 322, 2001 N.Y. App. Div. LEXIS 6735

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

DecidedJune 25, 2001

StatusPublished

Cited by2 cases

This text of 284 A.D.2d 510 (Martini v. Martini) 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

Martini v. Martini, 284 A.D.2d 510, 727 N.Y.S.2d 322, 2001 N.Y. App. Div. LEXIS 6735 (N.Y. Ct. App. 2001).

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Opinion

—In an action for the partition of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), dated March 15, 2000, as granted those branches of the motion of the temporary receiver which were to authorize the payment of a commission in the sum of $76,473.60, and the payment of an attorney’s fee in the sum of $21,585.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to authorize the payment of an attorney’s fee in the sum of $21,585, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs payable to the defendants.

The Supreme Court erred in authorizing an award of an attorney’s fee. Although a court may authorize the appointment of counsel nunc pro tunc (see, Bozewicz v Nash Metal Ware Co., 280 AD2d 443), “[i]t is the rule that a Receiver who is a lawyer is expected to perform customary legal duties connected with his tenure” (Strober v Warren Prop. Co., 84 AD2d 834, 836). Since the services rendered by counsel do not appear to have been extraordinary, the amount awarded as compensation for legal services should have been deducted from the sum awarded to the receiver as his commissions (see, Strober v Warren Prop. Co., supra, at 836; Lentine v Fundaro, 56 AD2d 592).

The defendants’ remaining contentions are without merit. O’Brien, J. P., Altman, Luciano and Adams, JJ., concur.

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—In an action for the partition of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), dated March 15, 2000, as granted those branches of the motion of the temporary receiver which were to authorize the payment of a commission in the sum of $76,473.60, and the payment of an attorney’s fee in the sum of $21,585.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to authorize the payment of an attorney’s fee in the sum of $21,585, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs payable to the defendants.

The Supreme Court erred in authorizing an award of an attorney’s fee. Although a court may authorize the appointment of counsel nunc pro tunc (see, Bozewicz v Nash Metal Ware Co., 280 AD2d 443), “[i]t is the rule that a Receiver who is a lawyer is expected to perform customary legal duties connected with his tenure” (Strober v Warren Prop. Co., 84 AD2d 834, 836). Since the services rendered by counsel do not appear to have been extraordinary, the amount awarded as compensation for legal services should have been deducted from the sum awarded to the receiver as his commissions (see, Strober v Warren Prop. Co., supra, at 836; Lentine v Fundaro, 56 AD2d 592).

The defendants’ remaining contentions are without merit. O’Brien, J. P., Altman, Luciano and Adams, JJ., concur.

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Bluebook (online)

284 A.D.2d 510, 727 N.Y.S.2d 322, 2001 N.Y. App. Div. LEXIS 6735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martini-v-martini-nyappdiv-2001.

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