Opinion
23298/08.
Decided March 23, 2011.
Defendant Board of Managers of the Newswalk Condominium by Beatrice Lesser, Esq., Gallet Dreyer Berkey, LLP, New York, New York.
No other party appeared to oppose the instant motion.
By order to show cause filed on November 15 2010, under motion sequence five, defendant Board of Managers of the Newswalk Condominium (BMNC), moves for an order: (1) appointing a temporary receiver for the benefit of the condominium empowered and authorized to take all steps necessary to avoid waste and maximize the amount of rent collectible from a tenant of the subject condominium unit 515, to collect such rent and pay it to the condominium, among other specific relief; (2) correcting plaintiff's supplemental summons and complaint nunc pro tunc to reflect that the subject unit is known as block 1128 lot 1081 and not lot 108; (3) staying any motions as have been made by any other party until the court can determine whether to consolidate them with this motion; (4) and, for such other and further relief as the Court deems just.
There is no opposition to BMNC's order to show cause.
BACKGROUND
On August 13, 2008 plaintiffs filed a summons and complaint and notice of pendency with the Kings County Clerk's Office. On October 2, 2008, BMNC filed and served a verified answer. On October 2, 2008, plaintiff filed a supplemental summons and complaint. BMNC's has not answered the supplemental summons and amended complaint. On November 14, 2008, plaintiff filed an amended notice of pendency. On August 4, 2010, plaintiff filed a third notice of pendency.
MOTION PAPERS
BMNC's order to show cause contains, a memorandum of law, its' attorney's affirmation of compliance with rule 202.7(f) with related correspondence; and its' attorney's affirmation in support of the instant motion with twelve annexed exhibits labeled A through L. Exhibit A consists of a copy of the supplemental summons and amended complaint dated October 1, 2008. Exhibit B consists of BMNC's answer to the original complaint signed on September 17, 2008. Exhibit C is a described as a copy of the deed for the subject apartment unit. Exhibit D is a copy of plaintiff's notice of motion for renewal and re-argument of defendant Freemont Investment Loan's motion for summary judgment, both of which were granted. Exhibit E is copy of the court's order deeming as abandoned, it's prior order granting plaintiff's motion to renew and reargue. Exhibit F is a copy of the plaintiff's motion to resettle order, seeking to resettle an order and obtain a judgment of foreclosure. The affirmation of BMNC's attorney's indicates that a civil court judgment awarding attorney's fees to BMNC's is annexed, but no such document is attached. Exhibit G consists of copies of news stories pertaining to the defendant Garth Celestine. Exhibit H consists of a copy of a lien filed by defendant BMNC against the subject apartment unit. Exhibit I consists of a copy of a docketed transcript of judgment. Exhibit J consists of copies of correspondence between plaintiff's counsel and defendant. Exhibit K is a copy of the account history pertaining to the subject apartment unit. Exhibit L consists of copies of real estate sale listings pertaining to sales of apartments alleged to be similar to the subject apartment unit.
LAW AND APPLICATION
The original order to show cause required personal delivery of a copy of the order and the papers upon which it is based, on plaintiff's attorneys and on the attorneys for all defendants who have appeared in this action by December 10, 2010. The two affidavits of service of the order to show cause alleges service by overnight and ordinary mail upon attorneys Leslie Lopez and Ken Flickinger, respectively.
BMNC's method of service is defective in two ways. First, the order to show cause directs personal service as the method of service. The defendant did not in fact personally serve all parties as directed, but chose mailing of the order to show cause as the sole method. Second, the court directed BMNC to serve the plaintiff's attorneys and attorneys for all defendants who have appeared in the action. Although the affirmation of BMNC's counsel pertaining to compliance with Uniform Rule 202.7(f) identifies Leslie Lopez as the attorney for plaintiff, it remains unclear from the four corners of the two affidavits of service which other parties, if any, Ken Flickinger represents and whether all defendants who have appeared in the action have been served.
The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with ( In re Theodore T, 78 AD3d 955, 956-957 [2nd Dept., 2010] citing Hennessey v. DiCarlo , 21 AD3d 505 [2nd Dept., 2005]). Inasmuch as petitioner did not comply with the directions of the court, the court never obtained personal jurisdiction to decide the instant motion.
However, even assuming that BMNC had properly served all parties, it did not demonstrate a valid property interest in the subject condominium unit. In particular, BMNC is merely a defendant who has not asserted a counterclaim or cross-claim against anyone. In the absence of a pleading asserting a claim BMNC can not demonstrate a property interest.
CPLR § 6401(a) deals with the appointment of a temporary receiver and provides, in pertinent part, as follows, emphasis added:
(a) Appointment of temporary receiver; joinder of moving party. Upon motion of a person having an apparent interest in property which is the subject of an action in the supreme or a county court, a temporary receiver of the property may be appointed, before or after service of summons and at any time prior to judgment, or during the pendency of an appeal, where there is danger that the property will be removed from the state, or lost, materially injured or destroyed. A motion made by a person not already a party to the action constitutes an appearance in the action and the person shall be joined as a party.
BMNC's avers that Garth Celestine, the subject unit owner, has not paid common charges for sometime. BMNC's documentary evidence establishes that on June 27, 2008, it recorded a lien on the subject unit for unpaid common charges. BMNC, however, did not assert a cross-claim or counterclaim against any party when it originally answered plaintiff's complaint. Nor is there any evidence that BMNC has answered plaintiff's amended complaint. The court notes that an amended complaint, once served, supersedes the initial complaint and becomes the only complaint in the case as though the initial complaint was never served ( Elegante Leasing, Ltd. v. Cross Trans Svc, Inc. , 11 AD3d 650 [2nd Dept., 2004]; see also Titus v. Titus, 275 AD2d 409 [2nd Dept., 2010]). Therefore at this point, BMNC is seeking a provisional remedy without having asserted a claim against anyone in a pleading.
A receiver may only be appointed in an action which has property as its subject matter, therefore, it is the general rule that a receiver cannot be appointed in an action for a sum of money. If, however, the action effects specific money, e.g., the proceeds of the sale of specific securities, a receiver over the proceeds may be appointed ( see generally Joseph M. McLaughlin, Practice Commentaries, McKinney's CPLR C6401:1 at 406 citing Meurer v. Meurer, 21 AD2d 778 [1st Dept., 1964]).
Furthermore, nothing in the BMNC's moving papers demonstrates that the subject property is in any danger of being removed from the state, or lost, or materially injured or destroyed.
"The appointment of a temporary receiver is an extreme remedy which can only be invoked in cases in which the moving party has made a clear evidentiary showing of the necessity for conservation of the property and protection of the interests of the movant (see CPLR 6401(a), Hoffman v. Hoffman, 81 AD3d 600 [2nd Dept., 2011]). There is, therefore, no basis to appoint a temporary receiver in this action.
BMNC also seeks to correct plaintiff's supplemental summons and complaint nunc pro tunc to amend the lot number of the subject premises as it appears on plaintiff's pleadings. CPLR § 3025 is the lone section of the CPLR pertaining to the amendment and supplementation of pleadings. Pursuant to CPLR § 3025, the amending and supplementing of pleadings is an action afforded to parties only as to their own pleadings. BMNC has no authority to amend the pleadings or notice of pendency of of another party.
Finally, defendant seeks an order of the court staying any motions in the instant action until the court can determine whether to consolidate them with the instant order to show cause. Contrary to the requirements of CPLR 2214, BMNC has not identified any motion which it wants consolidated with the instant motion and has not cited any legal authority to stay the any motion pending in the instant action. The application for a stay of other motions is therefore denied.
BMNC's motion for an order (1) appointing a temporary receiver; (2) correcting plaintiff's supplemental summons and complaint nunc pro tunc; and (3) staying any other pending motions is denied in its entirety.
The foregoing constitutes the decision and order of the court.