| Parker Note Acquisition v Parker Ave. Assoc. LLC |
| 2014 NY Slip Op 51119(U) [44 Misc 3d 1214(A)] |
| Decided on July 25, 2014 |
| Supreme Court, Dutchess County |
| Pagones, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Parker Note
Acquisition, Plaintiff,
against Parker Avenue Associates LLC, JOSEPH F. SPIEZIO, III, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, CITY OF POUGHKEEPSIE, and JOHN DOE No.1 through JOHN DOES No.10 (The last ten (10) names being fictitious and unknown to the Plaintiff, it being the intention of the Plaintiff to designate any and all occupants/tenants of the premises being foreclosed herein, and any person or parties having or claiming an interest in or lien upon the mortgaged premises described in the Complaint), Defendants. |
The receiver, Ian Scott MacDonald, Esq., moves for an order approving a partial fee to be paid by the plaintiff.
Upon the foregoing papers, the motion is decided as follows:By way of background, upon motion of plaintiff and subsequent order of the Court, dated March 20, 2013, Jeffrey Rothschild, Esq. was appointed receiver of real property located at 58-70 Parker Avenue, Poughkeepsie, New York. Mr. Rothschild subsequently advised the Court of his inability to accept the receivership, at which time the successor receiver, Ian Scott MacDonald, Esq., was appointed.
Turning to the current motion, under New York law, courts can allow interim compensation of a receiver, and the amount of payment is entrusted to the court's discretion (see CPLR §8004[a],[b];Gasser v. Infanti Intern., Inc., 358 F.Supp.2d 176 [EDNY 2005]). Here, neither counsel objects to the partial fee payment of the receiver in the amount of Twelve Thousand Sixty Dollars ($12,060.00). However, plaintiff submits opposition to the extent that it seeks to shift the burden of payment to the plaintiff.
It is well settled that the Court may impose upon the party who moves for a receiver's appointment the obligation to compensate the receiver if special circumstances exist (see Amusement Distributors, Inc. v. Oz Forum, Inc., 113 AD2d 855 [2nd Dept 1985]). Here, the application of the receiver has unusual merit, in that, the receiver, despite not having a tenant in the building, has spent a significant amount of time and effort in making sure the building is secure. The receiver has hired a maintenance company to secure and maintain the building, met with insurance adjusters in order to file a claim for damage to building and maintain insurance thereon, and cooperated with the City of Poughkeepsie Police Department regarding several break-ins and trespass charges on the property. Accordingly, as plaintiff is the party who sought the appointment of the receiver and the receiver having demonstrated that special circumstances exist as to the receivership herein, i.e. that the building does [*2]not have any tenants and the receiver is entrusted with its security, plaintiff is directed to compensate the receiver. The receiver has made significant strides in protecting the property for the benefit of plaintiff and thus should be justly compensated for his efforts.
Based upon the foregoing, the receiver's motion is granted in its entirety. The receiver is directed to submit judgment consistent with the foregoing on seven (7) days notice within thirty (30) days hereof.
The foregoing constitutes the decision of the Court.
HON. JAMES D. PAGONES, A.J.S.C.
072514 decision & order