Opinion
October 30, 1989
Appeal from the Supreme Court, Suffolk County (DiNoto, J.).
Ordered that the order is modified, by adding a provision thereto that the receiver waived any claim to commissions on the sum of $8,245, representing the refund of a sum which was deposited in escrow with New York Life Title Insurance Company, until clearance of certain obligations to the Industrial Commissioner of the State of New York; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The receiver waived his right to a commission on the amount received which was a refund of a sum placed in an escrow account during the sale of the corporation's real property.
It is premature for the petitioner to complain about the amount of total gross receipts with which the receiver should be credited, because the Supreme Court has not yet determined the amount of his commission (see, CPLR 5501).
The Supreme Court properly held that the receiver was appointed pursuant to the Business Corporation Law rather than the CPLR (see, Matter of Corcoran v Joseph M. Corcoran, Inc., 135 A.D.2d 531). Thus, his commission should be calculated in accordance with Business Corporation Law § 1217. The claim for compensation in excess of the commission calculated under the provisions of that section is rejected (see, Matter of Kane, 132 A.D.2d 610, 611; see also, Amusement Distribs. v Oz Forum, 113 A.D.2d 855, 857; Hirsch v Peekskill Ranch, 100 A.D.2d 863). Reliance on Sunrise Fed. Sav. Loan Assn. v West Park Ave. Corp. ( 47 Misc.2d 940) is misplaced. The additional compensation awarded in that case reimbursed the receiver for the extraordinary legal services he had performed in addition to his normal duties. In the instant case, the receiver did not perform extraordinary legal services. In fact, the Supreme Court permitted him to retain an attorney and directed the payment of his attorney's fees.
We have considered the parties' remaining contentions and find them to be without merit. Spatt, J.P., Sullivan, Harwood and Balletta, JJ., concur.