Opinion
June 16, 1994
Appeal from the Supreme Court, Kings County (Richard Huttner, J.).
Motion for a stay of order disqualifying respondent's attorney is dismissed as moot.
This appeal arises from a partnership dissolution action involving two partnerships formed to own and operate two residential apartment buildings in Brooklyn. The record does not support the motion court's appointment of a temporary receiver pursuant to CPLR 6401 (see, Harmon v. Marks, 175 A.D.2d 44).
Plaintiff-respondent Melvyn Trepper argues that the actions of his partner Albina Goldbetter in the management of the partnerships' properties, specifically, demanding a 20% management fee for managing the properties and an interest rate of 15% on a $105,000 loan allegedly made by Goldbetter to the partnership, constitute dissipation of the partnerships' assets. Respondent further attempts to justify the appointment of a receiver by alleging contumacy on the part of appellant with respect to compliance with the terms of the order appointing a receiver. We hold that respondent did not make a sufficient showing of "danger that the property will be removed from the state, or lost, materially injured or destroyed" (CPLR 6401 [a]). A detailed evidentiary showing is required for the appointment of a receiver (see, Modern Collection Assocs. v. Capital Group, 140 A.D.2d 594).
The drastic remedy of a temporary receiver requires a detailed evidentiary showing and is used sparingly in partnership dissolution proceedings (see, Scharff v. SS K Partnership, 187 A.D.2d 645, 646, lv dismissed 81 N.Y.2d 954; Mandel v. Grunfeld, 111 A.D.2d 668); it simply is not necessary on this record to protect respondent's interests in the partnerships. This is particularly true in light of appellant's loan of $105,000 to the partnership. There is nothing in this record to indicate that the disputes between the parties concerning sums allegedly withdrawn by appellant as management fees and interest, if ultimately found to be owed by appellant, cannot be orderly adjusted in the partnership dissolution proceeding, by being set off against appellant's remaining interests in the partnerships' assets or reducing the amount of the outstanding balance of appellant's loan to the partnerships, without the costly services of a temporary receiver. The appointment of the Special Referee by the motion court should be sufficient.
Concur — Murphy, P.J., Sullivan, Rosenberger, Asch and Tom, JJ.