Opinion
2013-06-5
Ronald SUISSA, respondent, v. Marcy R. BARON, appellant.
Marcy R. Baron, White Plains, N.Y., appellant pro se. Steven G. Legum, Mineola, N.Y. (Gina Biasi of counsel), for respondent.
Marcy R. Baron, White Plains, N.Y., appellant pro se. Steven G. Legum, Mineola, N.Y. (Gina Biasi of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action for the partition of certain real property, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated May 10, 2010, as granted the plaintiff's motion, inter alia, pursuant to CPLR 6401 to appoint a temporary receiver to, among other things, maintain the real property and ensure that all items contained within the property remain therein, and authorized the receiver to collect the reasonable value of use and occupancy of the property from any and all occupants of said property.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 6401 to appoint a temporary receiver of the certain real property in Northport and all of its contents. “ ‘The appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits' ” ( Vardaris Tech, Inc. v. Paleros Inc., 49 A.D.3d 631, 632, 853 N.Y.S.2d 601, quoting Schachner v. Sikowitz, 94 A.D.2d 709, 709, 462 N.Y.S.2d 49), and “ ‘should be granted only where the moving party has made a clear evidentiary showing of the necessity for the conservation of the property at issue and the need to protect the moving party's interests' ” ( Vardaris Tech, Inc. v. Paleros Inc., 49 A.D.3d at 632, 853 N.Y.S.2d 601, quoting Lee v. 183 Port Richmond Ave. Realty, 303 A.D.2d 379, 380, 755 N.Y.S.2d 664).
Here, the plaintiff made a clear evidentiary showing that the subject personal property was in danger of being removed from New York, or materially injured or destroyed, and that the appointment of a receiver was necessary to conserve the personal and real property and protect the parties' interests, given the state of affairs between them ( seeCPLR 6401[a]; St. Julien v. LaGuerre, 39 A.D.3d 532, 533, 831 N.Y.S.2d 729;Singh v. Brunswick Hosp. Ctr., 2 A.D.3d 433, 434, 435, 767 N.Y.S.2d 839;Rose v. Rose, 305 A.D.2d 578, 579, 760 N.Y.S.2d 196;Gimbel v. Reibman, 78 A.D.2d 897, 433 N.Y.S.2d 217).
The defendant's remaining contentions are either raised improperly for the first time on appeal or without merit.