Modern Collection Associates, Inc. v. Capital Group, Inc.

140 A.D.2d 594, 528 N.Y.S.2d 649, 1988 N.Y. App. Div. LEXIS 5600

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1988
• Status: Published

Opinion

The appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of property from a party without the benefit of a trial on the merits (Schachner v Sikowitz, 94 AD2d 709). Such a provisional remedy may only be invoked in cases where the moving party has made a clear evidentiary showing of the necessity of the conservation of property and the protection of the interests of that party (Glassner v Kaufman, 19 AD2d 885). Such a showing has not been made in the case at bar. The plaintiff’s conclusory allegations are inadequate to substantiate its claim that Capital’s assets, which are now owned by TSC, are in danger of being removed from the State (Shapiro v Ostrow, 46 AD2d 859).

We note also that the appellants’ argument that the Supreme Court improperly granted the plaintiff a preliminary injunction is without merit. The record herein clearly reflects the fact that the plaintiff neither requested nor obtained a preliminary injunction. Mollen, P. J., Mangano, Brown and Kunzeman, JJ., concur.