Opinion
April 8, 1999
Appeal from the Supreme Court, New York County (Frank Lewis, S.R.).
A receiver is not entitled to reimbursement for an agent's commissions in the absence of a court order authorizing the agent's employment (Kitt v. D.M.V. Estates, 7 A.D.2d 291). Nor is the receiver entitled to receive a salary or commission for management services in addition to the commissions provided by CPLR 8004. (Siegel v. Bromanbro Realty Corp., 23 A.D.2d 634). However, the statute provides that in instances where there is no money in the hands of the receiver upon the termination of the receivership, the court may fix the receiver's compensation for services rendered and may direct the party who sought appointment of the receiver to pay such fees (515 E. 12th St. Assocs. v. Gentile, 160 A.D.2d 187; Long Is. Sav. Loan Assn. v. Bertsman Bldg. Corp., 123 A.D.2d 840). Here, "special circumstances" exist, to wit, the work performed on the premises, the benefits plaintiff received, and the fact that Mr. Aloi, the previous plaintiff, agreed to the hiring of the managing agent, that demonstrate the "receivership was conducted with the utmost concern for the physical and economic preservation of the property" (Sun Beam Enters. v. Liza Realty Corp., 210 A.D.2d 153, 154). Therefore, the failure of the receiver to obtain judicial approval to compensate the managing agent in excess of the fee limit set forth in the order does not bar the exercise of discretionary authority based upon the existence of special circumstances.
However, while the receiver testified as to the nature of his duties, he failed to provide any documentary evidence in support of his fee (New York State Mtge. Loan Enforcement Admin. Corp. v. Milbank Site One Houses, 151 A.D.2d 424, 425). Thus, it was error to award the receiver additional commissions.
Concur — Nardelli, J. P., Wallach, Lerner and Rubin, JJ.