Plaintiff commenced this action by filing a copy of the summons and complaint on August 30, 2010, seeking to foreclose the consolidated mortgage given by defendant 7128 Fresh Meadows, LLC ("7128 Fresh Meadows"), on the real property known as 71-28 163rd Street, Fresh Meadows, in Queens County, New York. The premises consists of a 10-unit condominium building, with one commercial unit, and nine residential units. Two residential units (Units 2B and 3A), together with the undivided interest in the common elements appurtenant thereto, have been sold and released from plaintiff's mortgage lien. The remainder of the condominium units, together with those units' undivided interest in the common elements appurtenant thereto, continue to be subject to plaintiff's mortgage lien.

Defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion, Inc. ("Zorion") served a combined answer to the complaint. Defendant City of New York Department of Finance served a notice of appearance and waiver. Defendant New York State Department of Taxation and Finance has not appeared or answered the complaint.

In an order by the undersigned, dated May 2, 2011, the motion by plaintiff for [*2]summary judgment as against defendant 7128 Fresh Meadows was granted, and the cross motion by defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion for summary judgment dismissing the complaint asserted against them was denied. See, East West Bank v 7128 Fresh Meadows, LLC, 31 Misc 3d 1228(A), 2011 WL 1901809, 2011 NY Slip Op 50892[U] [Sup Ct Queens County 2011].

Plaintiff moves for leave to appoint a temporary receiver, pursuant to Real Property Law section 254(10), for leave to appoint a referee to compute, for leave to amend the caption to substitute the names of the tenants in the property in the place of "John Doe No.1 through "John Doe #20 (fictitious names)" inclusive, without prejudice to any of the proceedings had or to be had herein.

With respect to that branch of the motion for leave to appoint a temporary receiver, plaintiff asserts that the Consolidation, Extension, and Modification of Mortgage and Security Agreement specifically authorizes the appointment of a receiver without notice and without regard for the adequacy of the security for the debt. Plaintiff also asserts that, absent the appointment of a temporary receiver, the premises may be materially injured or destroyed, or will deteriorate to such an extent that, on a sale at public auction, the premises will not realize a sum sufficient to satisfy the indebtedness due it, with interest, costs, and arrears of taxes.

Defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion oppose the appointment of a receiver, contending that defendant Board of Managers of Habitat Condominium ("Board of Managers") presently manages the condominium building. They argue, however, that, in the event a temporary receiver is appointed, the Court should restrict the receiver's authority so to prevent interference with defendant Board of Managers' management of the building and common areas, and bar collection of the rents from the sold units.

The mortgage agreement at issue includes a provision expressly authorizing, in an action to foreclose the mortgage, the appointment of a receiver "without the necessity of proving either inadequacy of the security or insolvency of the Mortgagor or any Guarantor . . . ." Thus, the plaintiff is entitled to appointment of a temporary receiver without regard to the adequacy of the security for the loan, and "regardless of proving the necessity for the appointment" (Naar v Litwak & Co., 260 AD2d 613, 614 [2nd Dept. 1999]; see, Real Property Law § 254[10]; see also, GECMC 2007-C1 Ditmars Lodging, LLC v Mohola, LLC, AD3d , 2011 WL 2163975, 2011 NY Slip Op 04630 [2nd Dept. May 31, 2011]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 890, 891 [2nd Dept. 2010]).

In any event, it appears that defendant 7128 Fresh Meadows has failed to make payment of outstanding real estate taxes and utilities at the premises, and appointment of a temporary receiver is necessary for the protection of plaintiff's interest in the subject premises and well-being of the tenants.

To the extent that defendant 7128 Fresh Meadows asserts that the temporary receiver's authority should be limited, a receiver of property, appointed by a court, has fiduciary responsibilities that embrace, among many, standing in the stead of the financially defaulting owner of property (see, [*3]Insurance Co. of N. Am. v City of New York, 71 NY2d 983 [1988]). Thus, a receiver's powers cannot exceed those of the defendant titled owner (see, Security Nat. Bank v Village Mall at Hillcrest, Inc., 79 Misc 2d 1060 [Sup Ct Queens County 1974]). The temporary Receiver to be appointed in the order to be settled hereon, shall have the usual powers, duties, and directions with respect to that portion of the premises still covered by the consolidated mortgage, including receiver of any rents, income, and other benefits now due and unpaid, or that may become due during the pendency of this action, issuing out of such mortgaged premises (see, CPLR 6401, RPAPL 1325[2]).

The temporary Receiver, however, shall not make any secondary appointments, including the appointment of an attorney, managing agent, appraiser, auctioneer, or accountant without prior written approval of the Court, after separate application to the Court, pursuant to section 36.1 of the Rules of the Chief Judge Uniform Court Rules (see, 22 NYCRR Part 36).

With respect to the branch of the motion for leave to appoint a referee, RPAPL 1321 provides that "if the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff." Here, the plaintiff has failed to establish that the time for defendants Brandi Sinkovish and Board of Managers to answer has expired. The affidavits of service of the licensed process servers, presented by plaintiff with respect to defendant Board of Managers and Brandi Sinkovish, are insufficient on their face to demonstrate proper proof of service of process upon those defendants (cf. Skyline Agency v Ambrose Cappotelli, Inc., 117 AD2d 135 [1986]).

Under CPLR 308(2), service may be made upon a natural person by delivery of the summons to a person of suitable age and discretion at the actual place of business, dwelling place or ususal place of abode of the person to be served and by mailing a copy of the summons to the person to be served (CPLR 308[2]). The affidavit of service dated October 20, 2010, indicates service of process was made upon defendants Brandi Sinkovish and David Privler, by delivery of "a" copy of the summons and complaint upon David Privler. That affidavit makes no mention of a second copy of the summons being delivered to David Privler, as a person of suitable age and discretion, for defendant Brandi Sinkovish, and in addition, does not state whether the address where service was made was Sinkovish's actual place of business, dwelling place, or ususal place of abode, or that a copy of the summons was mailed to Sinkovish.

The affidavit of service dated October 22, 2010, indicates that service of process was made upon defendant Board of Managers by affixing a copy of the summons and complaint on the door of the subject premises. It is unclear from these submissions whether defendant Board of Managers is a corporation, or an unincorporated association, but, in any event, service by affixing a copy of the summons on the door of the subject premises, does not constitute a valid method service upon the board of managers of a condominium, regardless of the condominium's status (cf. CPLR 311; General Associations Law § 13; Real Property Law § 339-n[7]).

Plaintiff, hence, has failed to demonstrate its entitlement to the appointment of a referee to compute, pursuant to RPAPL 1321. That branch of the motion for leave to appoint a referee, therefore, is denied without prejudice to renewal upon proper papers and at the appropriate juncture.

Settle order.

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J.S.C.