Marathon Natl. Bank of NY v Greenvale Fin. Ctr., Inc.

[*1] Marathon Natl. Bank of NY v Greenvale Fin. Ctr., Inc. 2011 NY Slip Op 50678(U) Decided on February 22, 2011 Supreme Court, Nassau County Jaeger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2011
Supreme Court, Nassau County

Marathon National Bank of New York, Plaintiff,

against

Greenvale Financial Center, Inc., ANNETTE APERGIS, PETER ZAPHIRIS, PEOPLE OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, GREENVALE FINANCIAL CENTER INC., IVY TESTTAKERS REVIEW, INC., R. GREENSPAN INTERNATIONAL INC., AND "JOHN DOE" No.2 THROUGH "JOHN DOE" #20, THE NAMES OF THE LAST 20, DEFENDANTS BEING UNKNOWN, THE PARTIES INTENDED BEING TENANTS OR PERSONS IN POSSESSION OF THE PREMISES DESCRIBED HEREIN OR HAVING AN INTEREST OR LIEN UPON THE PREMISES, DESCRIBED IN THE COMPLAINT, Defendants.



021794-09

Steven M. Jaeger, J.

The Temporary Receiver, Joseph Capobianco, moves unopposed pursuant to CPLR §8004 for interim commissions of five percent (5%) based on collections of $266,331.13 and expenses paid of $148,935.86. As such, Mr. Capobianco is seeking payment of $20,763.35 plus $113.42, for a total of $20,876.77.

The motion is granted insofar as the Temporary Receiver is entitled to interim commissions of $13,316.56 plus $113.42 in expenses, for a total of $13,429.98.

The Temporary Receiver relies on Sunrise Federal Sav. & Loan Ass'n v. West Park Ave. Corp., 47 Misc 2d 124 (Sup. Ct., Erie Cty. 1965) for calculating commissions by adding the collections to the expenses and requesting five percent (5%) of the total. However, more recent and controlling decisions have found that interpretation of CPLR §8004 to be incorrect. [*2]

CPLR §8004 provides for a receiver to be paid "five percent upon the sums received and disbursed". However, "and" does not mean "plus" as that would result in double payment. Instead, a receiver should be paid commissions based upon gross receipts, all of which will be disbursed or transferred. See, WF Shirley, LLC v. William Floyd Plaza Associates, 270 AD2d 255 (2nd Dept. 2000); citing Coronet Capital Co. v. Spodek, 202 AD2d 20 (1st Dept. 1994); See also, Eastrich Multiple Investor Fund, L.P. v. Citiwide Development, 218 AD2d 43 (1st Dept. 1996), in which the Court declined to adopt dicta from New York State Mortg. Loan Enforcement and Admin. Corp. v. Milbank Site One Houses, Inc., 151 AD2d 924 (1st Dept. 1989) finding that commissions should be paid only on that amount that was collected and disbursed, meaning the lesser amount of the two.

Based upon the foregoing, the Temporary Receiver, Joseph Capobianco, may withdraw $13,316.56, five percent (5%) of $266,331.13 in gross receipts, as an interim commission, and $113.42 for reimbursement of expenses, for a total of $13,429.98 from the Receiver's account. This covers the period of August 1, 2010 through December 31, 2010, subject to a final accounting. CPLR §6404.

This constitutes the Decision and Order of the Court.

Dated: February 22, 2011

__________________________________________

Steven M. Jaeger, A.J.S.C.