Appellate Division of the Supreme Court of New York, 2000

Federal Deposit Insurance v. 65 Lenox Road Owners Corp.

Appellate Division of the Supreme Court of New York · Decided March 13, 2000

270 A.D.2d 303; 704 N.Y.S.2d 613; 2000 N.Y. App. Div. LEXIS 2693

Cases that cite this one

9 later published cases cite this decision.

In re 29 Brooklyn Avenue, LLC (United States Bankruptcy Court, E.D. New York 2015)
Hawaii Ventures, LLC v. Otaka, Inc. (Haw. 2007)
HSBC Bank USA, N.A. v. Sage (Appellate Division of the Supreme Court of New York 2021)
Cenlar FSB v. Glauber (Appellate Division of the Supreme Court of New York 2020)
Deutsche Bank National Trust Co. v. Zlotoff (Appellate Division of the Supreme Court of New York 2010)
David Realty & Funding, LLC v. Second Avenue Realty Co. (Appellate Division of the Supreme Court of New York 2005)
243 West 98th Condominium v. Shapiro (Appellate Division of the Supreme Court of New York 2004)
Liberty Enterprises, LLC v. Adamsons (Appellate Division of the Supreme Court of New York 2004)
United States v. Lyons (Appellate Division of the Supreme Court of New York 2002)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to foreclose a mortgage, the nonparty receiver, Harry Horowitz, appeals from a judgment of the Supreme Court, Kings County (Garry, J.), entered May 3, 1999, which is in favor of the intervenor and against him in the principal sum of $203,900.19. The notice of appeal from an order dated September 11, 1998, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

The appellant was appointed the receiver of a building that was subsequently bought by the intervenor at a foreclosure sale. On a previous appeal, this Court sustained the interve*304nor’s objections to the appellant’s final accounting (see, Crossland Sav. Bank v 65 Lenox Rd. Owners Corp., 232 AD2d 520). The intervenor subsequently moved to compel the appellant to return his commission and certain funds which were the basis of its objections. The parties stipulated to refer the matter to a Referee to hear and report. The Referee scheduled a hearing at which the appellant failed to appear. Thereafter, upon the appellant’s default, the Referee issued a report recommending that the appellant pay the intervenor the principal sum of $203,900.19. The intervenor then moved to confirm the Referee’s report and the appellant cross-moved to disaffirm the report. The Supreme Court issued an order confirming the report and entered judgment thereon.

The Referee’s decision not to hold a hearing was due to the appellant’s default and not the Referee’s failure to comply with CPLR article 43. Moreover, the Supreme Court, which was the ultimate arbiter of the dispute, had the power to reject the Referee’s report and make new findings (see, CPLR 4403). Since the Supreme Court considered the appellant’s evidence and arguments, the appellant was not prejudiced by the Referee’s failure to hold a hearing (see, Shultis v Woodstock Land Dev. Assocs., 195 AD2d 677; see also, Adelman v Fremd, 234 AD2d 488; Stein v American Mtge. Banking, 216 AD2d 458).

It is well settled that compensation may be denied to a receiver who has grossly mismanaged the property entrusted to him or her (see, Matter of Corcoran v Joseph M. Corcoran, Inc., 135 AD2d 531; Title Guar. & Trust Co. v Adlake Corp., 161 Misc 27). In addition, the appellant here commingled receivership funds with his personal funds, which is a serious breach of a receiver’s fiduciary duties, and warrants denying the appellant any compensation.

The appellant’s remaining contentions are without merit. O’Brien, J. P., Sullivan, Luciano and Smith, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.