Secured Capital Corp. v. Dansker

Appellate Division of the Supreme Court of New York

Secured Capital Corp. v. Dansker

263 A.D.2d 503, 694 N.Y.S.2d 409, 1999 N.Y. App. Div. LEXIS 8118

Appellate Division of the Supreme Court of the State of New York·Decided July 19, 1999·Published·Cited by 5 cases

Opinion

—In an action for a judgment declaring, inter alia, that no contract or joint venture exists with regard to certain property, the defendants appeal from an order of the Supreme Court, Nassau County (O’Connell, J.), [504]*504dated April 28, 1998, which denied their motion for the appointment of a temporary receiver.

Ordered that the order is affirmed, with costs.

The defendants’ contention that the Supreme Court erred in denying their motion for the appointment of a temporary receiver is without merit. The appointment of a receiver is a drastic and intrusive remedy and may only be invoked in cases where the moving party has made a clear evidentiary showing of the necessity of conserving the property and protecting the interests of that party (see, Modern Collection Assocs. v Capital Group, 140 AD2d 594). While the defendants demonstrated their apparent interest in the specific funds and properties which are the subject of this action (see, Lefebvre v Shea, 212 AD2d 884; Meurer v Meurer, 21 AD2d 778), they failed to demonstrate that those funds or properties are in danger of being materially injured or destroyed (see, CPLR 6401 [a]). Bracken, J. P., Ritter, Altman and Friedmann, JJ., concur.

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—In an action for a judgment declaring, inter alia, that no contract or joint venture exists with regard to certain property, the defendants appeal from an order of the Supreme Court, Nassau County (O’Connell, J.), [504]*504dated April 28, 1998, which denied their motion for the appointment of a temporary receiver.

Ordered that the order is affirmed, with costs.

The defendants’ contention that the Supreme Court erred in denying their motion for the appointment of a temporary receiver is without merit. The appointment of a receiver is a drastic and intrusive remedy and may only be invoked in cases where the moving party has made a clear evidentiary showing of the necessity of conserving the property and protecting the interests of that party (see, Modern Collection Assocs. v Capital Group, 140 AD2d 594). While the defendants demonstrated their apparent interest in the specific funds and properties which are the subject of this action (see, Lefebvre v Shea, 212 AD2d 884; Meurer v Meurer, 21 AD2d 778), they failed to demonstrate that those funds or properties are in danger of being materially injured or destroyed (see, CPLR 6401 [a]). Bracken, J. P., Ritter, Altman and Friedmann, JJ., concur.

Secured Capital Corp. v. Dansker, 263 A.D.2d 503, 694 N.Y.S.2d 409, 1999 N.Y. App. Div. LEXIS 8118 (N.Y. Ct. App. 1999).

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263 A.D.2d 503 (Secured Capital Corp. v. Dansker) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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