A judgment in the total amount of $1,064.355.13 was entered in favor of the proposed intervenors, Marc Benhuri, Moises Kroitoro, and Bertha Epstein ("Proposed Intervenors"), and against Melvin Cooper, David Bersson and Frontline Communications International, Inc., on May 15, 2007, under Index No. 601838/03, after a trial held before the Hon. Richard B. Lowe, III and a jury in 2006.

The Proposed Intervenors now move by Order to Show Cause for an order:

(1)pursuant to CPLR 5228(a), appointing a receiver of certain property, i.e., all of the rights, title and interest in and regarding the real property located at 721 Fifth Avenue, Unit 45K, New York, New York, designated as Block 1292 and Lot 1128, consisting of a condominium unit located at the building known as "Trump Towers" (the "Property"), with the authority to sell, administer and collect income generated by the Property, and to thereafter apply to the Court for approval and leave to apply the sale proceeds to the satisfaction of the judgments rendered against the defendant/judgment debtor, Mel Cooper, and in favor of the movants, and in favor of such other judgments or persons as required by law or as directed by the Court;

(2)permitting the movants to intervene in this action as of right pursuant to CPLR 1012(a)(3) or to assert claims by permission pursuant to CPLR 1014, that the purported transfer of the Property by defendant Mel Cooper to a related non-party entity, Imperial Capital LLC ("Imperial"), was a fraudulent transfer and void as a matter of law; and

(3)staying the sale of the Property or the sale of the interest in the Property of defendant/judgment debtor Mel Cooper, pending a determination of the fraudulent transfer claim.

In signing the Order to Show Cause on October 12, 2010, this Court granted a temporary restraining order pending the hearing of this motion, staying the Sheriff's Sale of the Property for public auction which was then scheduled for October 13, 2010.

Elaine Thompson, who had also obtained a judgment against a) defendant Melvin Cooper, individually and in his official capacity, b) Frontline Communication International Inc. and c) numerous others, including defendants David Cooper and David Bersson, under Index No. 118235/02, on September 4, 2009 in the total sum of $4,141,727.73, cross-moved for an order:

(1)granting a stay of the Sheriff's sale;

(2)appointing a receiver of the Property for the purpose of seeking a fair-market sale of the Property and applying the proceeds of the sale to the judgment creditors of the defendants; and

(3)allowing Elaine Thompson to intervene in this action for the purpose of asserting claims that the Property was fraudulently transferred from Mel Cooper to Imperial Capital LLC.

The plaintiff/judgment creditor in the instant action which is the assignee of a judgment entered on May 7, 2007, in the sum of $335,243.55 opposed the motion and cross-motion, on the grounds that there was no basis to vacate the Sheriff's execution upon the real property because [*2]plaintiff has a valid Judgment Lien, it is a public auction in which anyone can participate, and the Sheriff would pay creditors according to priority.

Plaintiff argued that the motion and cross-motion were based on unsupported speculation that a receiver might obtain more money for the property than would be obtained at an auction. To the contrary, plaintiff contended that the appointment of a receiver would cause the parties to incur greater costs because the Sheriff is entitled to recover only a 5% poundage on the sale price (CPLR 8012[b][1]), which is less than the commission a receiver might obtain. In addition, plaintiff claimed that the Sheriff had taken the position that he is entitled to the poundage even if the execution is vacated.

Plaintiff further argued that the alleged fraudulent conveyance was no basis to hold up plaintiff's enforcement of its judgment since plaintiff's judgment here was docketed five months before Mel Cooper conveyed his interest in the property to Imperial.

Alternatively, plaintiff argued that in the event this Court does appoint a receiver, the movants and cross-movant should be required to immediately pay the 5% poundage to the Sheriff. Similarly, the Sheriff - who took no position with respect to the appointment of a receiver - submitted an Affirmation in Partial Opposition, in which he argued that he is entitled to collect fees and poundage pursuant to CPLR 8011, 8012 and 8013 in the event that the executions are vacated and the Sheriff's sale is cancelled.

JPMorgan Chase Bank, National Association ("Chase Bank") which also submitted an Affirmation is the plaintiff in a foreclosure action pending under Index No. 107522/09 against several defendants including Mel Cooper, Imperial Capital LLC, the plaintiff herein, and the movants, which involves the subject Property.

Chase Bank has a Consolidated Mortgage on the property which was executed on August 5, 2005 and recorded on October 20, 2005. Thus, Chase Bank claims that it has priority over all these judgments.

Chase Bank requests that should the Court appoint a receiver, the Court should also order that the mortgage of Chase Bank be paid first as it has priority; that the sale price must be sufficient to pay it in full; that the receiver is subject to the pending foreclosure action; and should a foreclosure sale of the property occur prior to sale by the receiver, that the receivership is terminated and all interested parties, as named in the foreclosure action, are subject to the foreclosure and sale.

Chase Bank further argues that the request to deem the transfer of the property to Imperial Capitial, LLC as fraudulent does not effect its interest in the mortgaged premises or its right to proceed with the pending foreclosure action, since its mortgage was executed prior to the transfer, and both the defendant Mel Cooper and the current record owner, Imperial Capital, LLC, have been named as defendants in that action. [*3]

Lastly, Chase Bank requests that should plaintiff be permitted to proceed with the Sheriff's sale, that the Notice and Terms of Sale specifically state that the sale is subject to the Consolidated Mortgage of Chase Bank, despite the fact that any Sheriff's sale would, nonetheless, be legally subject to its lien.

The Board of Managers of the Trump Towers Condominium where the Property is located also submitted an Affirmation indicating that it takes no position on whether the apartment should be sold on plaintiff's behalf at a Sheriff's sale, or by a receiver appointed for the purpose of conducting a public sale on the movant's behalf. The Board of Managers just requests that any sale be subject to any unpaid common charges and assessments owed to it, and to all the terms and conditions in the By-Laws of the Condominium, including, but not limited to, the Board of Managers' right of first refusal, pursuant to Article 8.

Counsel for defendant David Cooper and non-party Imperial then cross-moved for an order pursuant to CPLR 5238 and 5240:

(1) vacating the current real estate execution and Sheriff's sale against the property on the grounds that the property is owned (and rightfully belongs to) the non-party of interest, Imperial Capital LLC, and not to the judgment debtor, Mel Cooper; and

(2) granting a protective order in connection with the same.

According to the Affidavit submitted by defendant Mel Cooper, he individually owned Apt. 45K at the Trump Towers prior to April 20, 2006 when he allegedly sold it to Imperial in exchange for proportionally valued Imperial membership units. However, the deed was never recorded or filed in the Office of the City Register of the City of New York until October 26, 2007.^[FN1]

Defendant Mel Cooper also claims that Imperial, the actual owner of the property, was never properly notified of the sale pursuant to CPLR 5236.

Moreover, Mel Cooper points out that the issue of whether the sale was a fraudulent conveyance is already the subject of another lawsuit pending in this Court before the Hon. Joan B. Lobis, entitled Elaine Thompson v. Mel Cooper a/k/a Melvin Cooper and Imperial Capital, LLC, Index No. 116079/09, and thus that this issue should be deferred in favor of the determination in that action.

All the parties who appeared in connection with this motion and cross-motions, except the defendants, then entered into a Stipulation in February 2011, and submitted a proposed Order to this Court establishing a procedure to sell the property under the co-Receivership of counsel for the intervenors and the plaintiff, and then pay the outstanding fees, mortgage and judgments except for the judgment of Elaine Thompson whose rights are being determined in the case pending before [*4]Justice Lobis.

Counsel for defendant David Cooper and non-party Imperial, responded to this Stipulation by arguing that their cross-motion must be decided before the Court can entertain the proposed Order and Stipulation.

In essence, defendant David Cooper and Imperial argue that Mel Cooper sold the Property to Imperial for valid consideration on April 20, 2006 and also executed, acknowledged and delivered a written deed to Imperial on April 20, 2006 complying with all the formalities required by the law. According to defendant David Cooper and Imperial, the April 2006 Deed was allegedly mistakenly sent to the County Clerk in Miami-Dade County Florida while prior counsel for Imperial - Jerome Goldman - was filing other deeds for certain Imperial owned properties in Florida, and thus it was lost or misplaced.

Mr. Goldman states in his Affidavit sworn to on November 26, 2010 that he prepared and witnessed the April 20, 2006 Deed and that the Confirmatory Deed prepared on or about October 24, 2007 and "made as of April 20, 2006" contains the same information as the April 20, 2006 Deed.

It is clear that before any Sheriff's sale can go forward, the claims by David Cooper and Imperial that the Property was lawfully transferred to Imperial on April 20, 2006, prior to entry of the judgments by any of the judgment-creditors appearing on this motion, and not on October 24, 2007, after entry of the judgments, must be addressed. Defendant David Cooper and Imperial have made sufficient prima facie showing to require an evidentiary hearing on this issue.

However, the aforementioned action now pending before Justice Lobis already involves Thompson's claim that the conveyance of the Property by Mel Cooper to Imperial was fraudulent and void. Justice Lobis has referred the issue of the alleged fraudulent conveyance to a special referee for a hearing, which is currently scheduled to take place on July 14, 2011. Although that case only specifically deals with Thompson's claims, should the referee and, ultimately, Justice Lobis determine that the transfer of the Property was fraudulent and is, therefore, void, the issue raised by defendant's cross-motion regarding when, as a matter of law, the property was transferred, becomes moot.

Accordingly, the Order to Show Cause by Proposed Intervenors Marc Benhuri, Moises Kroitoro and Bertha Epstein is granted solely to the extent of permitting them to intervene in this action and continuing the stay of the sale of the Property, but is denied in all other respects without prejudice to their right to seek the additional relief sought therein after a determination has been made on the issue of the alleged fraudulent conveyance of the Property.

The cross-motion by defendant Cooper and non-party Imperial is denied in its entirety, as the sale of the Property remains stayed, without prejudice to said defendant to seek additional relief if appropriate if the Property is found not to have been fraudulently conveyed to Imperial. [*5]

Finally, the cross-motion by Elaine Thompson for leave to intervene for purposes of asserting fraudulent conveyance claims against Mel Cooper is denied, as she has already asserted those claims in the action pending before Justice Lobis. That portion of the cross-motion seeking a stay of the Sheriff's sale has already been granted. That portion of the cross-motion seeking the appointment of a receiver to oversee the sale of the Property is denied without prejudice to move for such relief, if deemed appropriate, after a determination has been rendered on her petition before Justice Lobis.

This constitutes the decision and order of this Court.

Dated: June 13, 2011

BARBARA R. KAPNICK

J.S.C.