1995 Birchall Ave. LLC v Boodhoo

1995 Birchall Ave. LLC v Boodhoo 2015 NY Slip Op 04223 Decided on May 14, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 14, 2015
Friedman, J.P., Saxe, Richter, Manzanet-Daniels, JJ.
15128N 380198/14

[*1] 1995 Birchall Avenue LLC, Plaintiff-Appellant,

v

Lekhram Boodhoo, et al., Defendants-Respondents, City of New York Environmental Control Board, et al., Defendants.

Warner & Scheuerman, New York (Karl E. Scheuerman of counsel), for appellant.

Warren S. Hecht, Forest Hills, for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about August 14, 2014, which, inter alia, denied plaintiff's motion seeking the appointment of a temporary receiver, unanimously affirmed, without costs.

The court properly denied plaintiff's motion for the appointment of a temporary receiver pursuant to CPLR 6401. Plaintiff failed to make a clear evidentiary showing warranting the drastic remedy of appointment of a receiver (see Moran v Moran, 77 AD3d 443, 445 [1st Dept 2010]). Plaintiff's argument that it was it was not required to make the showing of necessity mandated by CPLR 6401(a) because the mortgage should be construed under Real Property Law § 254(10) to authorize the appointment of a receiver, was not properly raised below (see Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2015

CLERK