Natoli v Milazzo

Natoli v Milazzo 2006 NY Slip Op 10035 [35 AD3d 823] December 26, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Vincent E. Natoli et al., Respondents,
v
Louis Elias Milazzo et al., Appellants.

—[*1]

In an action, inter alia, to enjoin the defendants from operating in or entering the plaintiff Cathedral Church of St. Lucy's, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated October 3, 2005, as (1) denied that branch of their cross motion which was for summary judgment dismissing the complaint, and (2), sua sponte, appointed a receiver to, among other things, oversee the daily operations of the plaintiff Cathedral Church of St. Lucy's.

Ordered that on the Court's own motion, the notice of appeal is treated as an application for leave to appeal from so much of the order as, sua sponte, appointed a receiver, and leave to appeal is granted from that portion of the order (see CPLR 5701 [c]); and it is further,

Ordered that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof appointing a receiver over the plaintiff Cathedral Church of St. Lucy's; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court improvidently exercised its discretion in, sua sponte, appointing a receiver over the plaintiff Cathedral Church of St. Lucy's (hereinafter St. Lucy's), since no party asked for that relief and there was no evidence that St. Lucy's assets were susceptible to waste or that such a drastic remedy was warranted (see Matter of Armienti & Brooks, 309 AD2d 659 [2003]; Rotary [*2]Watches [USA] v Greene, 266 AD2d 527 [1999]; Ronan v Valley Stream Realty Co., 249 AD2d 288 [1998]; Matter of Hessert v Brooklyn Home Dialysis Training Ctr., 231 AD2d 719 [1996]; Matter of Breiterman v Chemical Bank, 181 AD2d 675 [1992]).

The Supreme Court did not err in denying that branch of the defendants' cross motion which was for summary judgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Florio, J.P., Mastro, Spolzino and Skelos, JJ., concur. [See 9 Misc 3d 1116(A), 2005 NY Slip Op 51570(U) (2005).]