Terrastone Ellwood L.P. v Gateway Ventures, LLC
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Terrastone Ellwood L.P. v Gateway Ventures, LLC 2012 NY Slip Op 33850(U) November 28, 2012 Supreme Court, New York County Docket Number: 108892/10 Judge: Carol E. Huff Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 32 ---------------------------------------~-------------·----------------·-X TERRASTONE ELLWOOD L.P., Index no. 10889~/10 Plaintiff, - against GATEWAY VENTURES, LLC; NEW YORK DEPARTMENT OF TAXATION AND FINANCE; NEW YORK CITY, DEPARTMENT OF TRANSPORTATION, PARKING VIOLATIONS BUREAU; THE CITY OF NEW YORK (Environmental Control Board); THE CITY OF NEW YORK (Department of Housing Preservation and Development); et. al., Defendants. ------------------------------------------------~·-----------~----------~x CAROLE. HUFF, J.: In this mortgage foreclosure action with respect to property located at I Sherman Avenue and 97-J 05 Ellwood Street, New York, New York (the ''Property"), the Property's first receiver Carol Lilienfeld moves for an order approving her final account; authorizing and ratifying payment of outstanding bills to the court-appointed attorney, managing agent and others; approving payment of commissions to the receiver; and authorizing that the bond be discharged. Lilienfeld was appointed receiver by order of this Court dated August 9, 2010. She was discharged, at her request, by order dated July 13, 2012, and a successor receiver was appointed to replace her. Lilienfeld also seeks commissions of $79,000 (of which $18,000 has already been paid) representing fi_ve percent the $1,581,882.39 she collected during her receivership. She also seeks [* 2] ---------------------·--· .. --·- an order providing for payment to the court-appointed law finn Borah, Goldstein, Altschuler, Nahins & Goidel ("Borah Goldstein") totaling $19,204.60; to the court-appointed managing agent The Beson Group totaling $13,215.92; to contractor Petroleum Tank Cleaners totaling $4,431.88; and to SJ Fuel Company totaling $4,770.45. Plaintiff strongly opposes payment of full commissions to Lilienfeld. Plaintiff attorney states that the first receiver's neglect of serious issues at the Property, including her failure to perform necessary and emergency repairs, and refusal to cooperate with [plaintiff] contributed to the significant deterioration in condition of the Property during her receivership. As a result, during Lilienfeld' s receivership, the Prope~y was placed into New York City's Alternative Enforcement Program, resulting ·in various violations owed to the New York City Department of Taxation and Finance which liens have, and will continue to substantially and unreasonably decrease the value of the property. Jason S. Leibowitz 8/22/12 Aff. at 2. Lilienfeld disputes these assertions and details the difficulties she faced in her receivership as well as plaintifrs alleged lack of cooperation. She submits the affidavit of a building manager in support of her position. . . A receiver may be compensated with commissions ''not exceeding five percent ... as the court by which he is appointed allows.... " CPLR 8004(a). The receiver "is not entitled to the 5% statutory maximum as of right as the ... court clearly has the discretion to award a lower percentage.'' Coronet Capital Co. v Spodek, 202 AD2d 20, 27 (l51 Dept 1994). Because there are numerous issues of fact presented that cannot be detennined on the papers submitted, the matter is hereby referred to a Judicial Hearing Officer or Referee to hear and report on the issue of whether and in what amount the fees requested by the first receiver should be discounted to an amount reasonable in relation to the services rendered and the results [* 3] achieved. With respect to the payments to the court-appointed attorneys and managing agent and to others, the motion is granted. Although plaintiff states generally that the motion should be denied in its entirety, it does not offer specific objections to these payments. Plaintiff also does not specifically object to the final account presented by the first receiver or to the discharge of the bond, and these aspects of the motion are granted as well. Accordingly, it is O~ERED that those parts of the motion seeking approval of the final account and discharge of the bond are granted, and with respect to them- Lilienfeld is directed to settle order with notice; and it is further ORDERED that that part of the motion seeking payment to Borah Goldstein, The Beson Group, Petroleum Tank Cleaners and SJ Fuel Company is granted, and with respect to it Lilienfeld is directed to settle order with notice; and it is further ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this Court on the following individual issues of fact, which are hereby submitted to the IBO/Special Referee for such purpose: the issue of whether and in what amount the fees requested by the first receiver should be discounted to an amo~t reasonable in relation to the services rendered and the results achieved; and it is further . ORDERED that the powers of the JHO/Special Referee shall not be limited further than as set forth in the CPLR; and it is further ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119M, 646-386-3028 or spref@courts.state.ny.us) for placement at the earliest possible date upon the -3- [* 4] calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of the Part (which are posted on the website of this Court at www.nycourts.gov/supctmanh at the "References" link under ''Courthouse Procedures"), shall assign this matter to an available JHO/Special Referee to hear and report as specified above, and it is further ORDERED that counsel shall immediately consult one another and counsel for plaintiff/petitioner shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186) or e-mail an Information Sheet (which can be accessed at the "References" link on the court's website) containing all the information called_for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part, and it is further ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed, on the date first fixed by the Special Referee Clerk subject only to any adjournment that may be authorized by the Special Referees Part in accordance with the Rules of that P~,. and it is further ORDERED that, the hearing will be conducted in the same manner as a trial before a Justice without a jury (CPLR 4320[a]) (the proceeding will be recorded by a court reporter, the rules of evidence apply, etc.). and, except as otherwise directed by the assigned IBO/Special Referee for good cause shown, the trial of the issue specified above shall proceed from day to day until completion, and it is further ORDERED that any motion to confirm or dis~ffirm the Report of the IBO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section -4- [* 5] , 202.44 of the Uniform Rules for the Trial Courts, and it is further ORDERED that, unless othenvise directed by this Court in any Order that may be issued together with this Order of Reference to Hear and Report, the issues presented in any motion identified in the first paragraph hereof shall be held in abeyance pending submission of the Report of the JHO/Special Referee and the determination of this Court thereon. Dated: NOV ~ S iaii -5-
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