New Fuzhou Senior Assn. USA, Inc. v Chaoxiang Lin

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New Fuzhou Senior Assn. USA, Inc. v Chaoxiang Lin 2012 NY Slip Op 30732(U) March 20, 2012 Supreme Court, New York County Docket Number: 104203/10 Judge: Paul Wooten Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YQRK PRESENT! - NEW YORK COUNTY HON. PAUL-WOOTEN PART Justice 7 NEW F U ~ H O U SENIOR ASSOCIATION USA, W P , Plalntiff, Io42a31io INPEX NO. -aQainstMOTION SEQ. NO. 007 CHAOXIANG LIN, Defendant. The fpllawing papers, numbered 1 to -were read on this motion by . Replying Affidavits (Reply Memo) Cross-Motion: flyes No 3 NEVdYORK COIJNlY CLERKS OFFICE Motion sequehces 002 and 007 are hereby consolidated for purposes of disposition Pursuant to this Court's order dated September 28, 201 1, the parties consented to the appointment of Timothy K. Wong, Esq. of 33 Bowery, Suite c294, New Ymk, NY, 10002, as a receiver pursuant tg CPLR 6401 to review the corporate structure and financial practices of the 0 not-for+profitcgrporatronplaintiff, New Fujian Fuzhou Senior Asswiatjon USA, Inc. (plaintiff), including its bylaws, certificate of incorporation, and its officehdder election procedures in order to determine if plaintiff is in compliance with New York State not-for-profit corporation law and oversight requirements of the New York State Attorney General. Mr. Wong was also appointed as receiver to review the correct amount and proper status of defendant's expenditures and plaintiff's corporate funds, while the defendant served as plaintiff's president. Also within the ) , September 28, 201 1 order, the parties consented to set aside $7,500.00 in a receiver's account for the Court Appointed Receiver's fee and expenses. Mr. Wong, who is qualified as a receiver pursuant to Rules of the Unified Court System, Part 36, was appointed in this matter because he possessed the requisite qualifications Page 1 of 6 [* 2] I necessary fdr the determination of the issues presented herein. Specifically, his background 3s a Certified Public Account (CPA) and lawyer with extensive experience in accounting, auditing, finance and corporation law, made Mr. Worlg qualified to review whether plaintiff was in compliance with the relevant corporation law and to review and make determinations t i f h financial documents and expenditure receipts. Additionally, Mr. Wong Speaks and reads Mandarin, Cantonese and Chinese. His proficiency in these languages ellabled him to cornmurlicate and understand plaintiff s members 1 and the defendant, who are a 1 from F w h o n and speak Fuzhpurlese, a dialect of the Mandarin in language. Mr. W n g s language skills were an important &factor hi$ selection as a receiver because plaintiff s corporate minutes and records, as well as defehdant s financial receipts are all written iq the Chinese l a n g u a ~ e .Moreover;, Mr. Wqng is also of Asian-American descent, ~ and is aware of the cultural sensitivities and plaintiff s importance within the community. Most importantly, upon meeting with the parties Mr Wong.was able to effectively communicate with the parties, thereby allowing him to make the determihatiqns for Which he was appointed. i r Mr. On July 18, 201 1 and September 11, 201 I, Wong filed his First and Final Receiver s Reports and Recommendations (collectively, Reports), respectively, with the Court. On August 1 , 201 1 , plaintiff filed its opposition to the Receiver s First Report, and subsequently filed in opposition to the Final Report on September 30, 201 1 , The defendant moved by Order to Show Cause on November 18, 201 1, to affirm and accept the Receiver s Report (motion I The Court forwarded a copy of the Order appointing Mr. Wong as receiver to the Fiduciary Clerk of the Court, Part 36. 2 The Court sought a Chinese language interpreter at each Court appearance, sometimes without success. The Court does n d have a Fuzhounese language interpreter (eg. August 4, 2010, court transcript p. 2, line 17). 3 The Court notes, in prior motion practice the language barrier was an issue for defendant, as he could not understand a prior order of this Court. Thk result of this lead to plaintiff bringing a motion for contempt, wherein defendant asserted the language barrier as a partial defense. Page 2 of 6 [* 3] ' * 'W'qclWi& 007): The Court heard oral argument on motion sequence's 006 and 007 on Novernlxr 30, 201 1. Mr, Wong filed his Accounting and Request for Compensation and Expenses on r 20, 201 1, with accomp ing exhibits A th ing the deswptioh Qf his Mr. Wong submits an itemized k, including: the pended for each item, the hourly rate, and the amount requested for each item His tgtal alleges $165.00 in expenses ($40 00 for certified mqil and $125.00 for copies) qnd 29.5 hour$ of work at an hourly rate gf $$OO.OO per hour for $9,015.00, Mr. Wong, in hi$ request for s to $ f , W O . O O , eqs,a\ian an@e x p q s e s reduced 1 - 1 t I I Receiver's fee expense^.^ Plaintiff's opposition does not address any spec expense, or hourly rate, instead plaintiff bpposeS on the basis that Mr. Wong is biased. Pkfehdant does not SpeGifiCally oppo5e g's fees. DISCUSSION I i Mr. Wong's role 'in this caqe did entail ?thetraditional responsibilities of P temporary I receiver such a6 holding real or personal prQpeyty, or suing and collecting #debtsor claims (see e g. CPLR 6401 [b]). Instead, Mr. Wong's responsibilities of reviewing plaintiff's corporate structure and financial practices And also revieding the correct amount and proper status of defendant's expenditures and plaintiff's corporate funds, involved Mr. Wong making findings of fact and determinations regarding credibility of the parties, analogous to responsibilities often directed to a special referee. As such, the Court adopts the findings of Mr. Wong's Reports as he was in the best position to determine the issues presented in this matter (see Nager v 4 Plaintiff submitted a two-page double spaced affidavit by the Association Acting President in partial opposition. Page3 of 6 [* 4] ,, Panadis, 238 A D2tl 1 35, 135-136 [ l s t D6pt 19971 [internal dtatidng omitted]; see also Melnittky v Uribe, 33 4D3d i 7 3 [I Dept 20061; Kaplan v Einy, 209 AD2d 248 [I bept 19941; Namer v st st 752-5456 W. 75th $t. Realty C o p . , 108 AD2d 705 [ l s t Dept 19851 Iv dismissed sub nom Walker v Sant An I ended, inter alia, that the Court s order barring defen Mr. Lin from entering the Association premises is lifted and all documents suggesting otherwise are removed from the premises (see Final Report, exhibit A, p. 5). Mr. Wong further concluded in his Reports, rsations with the parties and reviewing plaintiff s bank receipts, which atQ written in ,Chinese, that defendant atters subiequent to his election as President of I i$Cqurt voided his election,(see Final Report, exhibit A, p.3, x i I 4). In addition, those funds spent by the defendant, while President, in the defense of this action were reimbursed to the plaintiff (see First Receiver s Report, p. 2-3, Locatioh of the Fuvds ) In plaintiff g ppposition tb Mrl,lWgng s request for Compehsation, the Court finds the allegation of bias be unavailing, as welltthe other argumprits in opposition. Contrary to I * I 1 plaintiff s opposition, the Court finds that the record fully supports Mr. Wbng s factual findings and conclusiohs of law contained within his Report. Thus, all of Mr. Wong s recommendations in the Reports are adopted by the Court, and his Reports are confirmed. Finally, the Court turns to Mr. wong s request for compensation and finds that fee restriction contained within CPLR 8004(a), regarding cornhissions of receivers is not applicable to this case, as funds did not pass through Mr. WQng shands. In addressing a request for compensation by a receiver, the Court needs to ensure that the receiver properly kept receipts for expenditures and itemized his invoice, and to determine whether the fees, expenses and the requested compensation are appropriate and reasonable in light of the tasks required. The Court finds that Mr. Wong s request for fees and compensation are reasonable for the tasks he Page 4 of 6 *. 8 [* 5] I performed in'this matter, 3hd A hb h rate of $300.00 per hour i CoMrrrQhsmat'efor s attorney with his years of admittance to the bar and for his additiqnal trainihg a$ 8 m CPA. Moreover, aq discussed above, all parties consented to the amount that Mr. Wong is naw seeking as compensafign, 8 date there has beer, no oppositiop to the amount of I he is seekirlg (see September 28, 201 1 Qrder). CONCLUSION Accordingly, it is, Motion S,equence 002 ORp@ED that the defendant's motion t cate the prelimingry injunctibn and temporary restraining ordered in motion sequence 001 is grah defendant's w i g r [eques that the defendant be reinstat@ tP have access to tbt) plqintiff's premises is granted in accordance with Mr. Wong's recommendatign; and it is further, ORDERED that plaintiff's cross-motion to dismiss defendant's motion to vacate the preliminqry if;ijur(ctign and temporary restraining ot'dered in rwtioq sequence 901 is denied as t pldintiff's aross-motion for defendant's contempt alleging that defendant allegedly misappropriated funds from pldintiff is denied in accordance with Mr. Wong's findings; and it is further, Motion Sequence 007 ORDERED that the defendant's motion for an order: (1) striking paragraph four of the complaint is denied as moot, per motion sequence 002; and (2) vacating the order barring the defendant from the entering the plaintiff's premises is denied as moot, per motion sequence 002; it is further ORDERED that the branch of defendant's motion seeking to have all documents referring to defendant Mr. Lin's former restriction from entering the premises and his alleged Page 5 of 6 [* 6] miS approprlalions of furWS I grdhted, and dl1 such doWrkhtatibh shall be re mbv8d from the s prgmises within 15 days of entry; it is further ORDERED that the defendant s motion adopting and implementing t h e recommendations in the Official Receiver s Report # 1 (dated July ( 8 , 201 1) and # 2 (dated 1 1 September II, I) granted; it is further 201 is I ORDERED that the Receiver s application for compensation in the amount of $7,500.00 is granted, subject to his completion of the appropriate forms; and it is further, ORDERED that counsel for defe Notice of Entry upon plaintiff and the Fiduciary This constitutes the Decision and 0 Pated: 3 f PAUL WOOTEN FINAL DISPOSITIOF Gheck if appropriate: J.S.C. u NONTINAL DISPO$ITION u DO NOT POST 11-1 REFERENCE NEW YORK COUNTY a E r i K s OFFICE Page 6 of 6

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