Eulisis Capital, LLC v Beltrami
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Eulisis Capital, LLC v Beltrami 2016 NY Slip Op 31636(U) August 24, 2016 Supreme Court, New York County Docket Number: 850030/14 Judge: Joan M. Kenney 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 ------------ -------------------------------x EULISIS CAPITAL, LLC, Plaintiff, Index # 850030/14 -againstMICHAEL BELTRAMI, CORNELIUS B. SPIERING, JAN PIETER VAN VUREN as foreign guardian for CORNELIUS B. SPIERING, UNITED STATES OF AMERICA - INTERNAL REVENUE SERVICE, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, "JOHN DOES" and "JANE DOES," said names being fictitious parties intended being possible tenants or occupants of the premises, and corporations, or other entities or persons who claim, or may claim, a lien against the premises, Decision & Order Defendants. -------------------------------------------x KENNEY, JOAN, M., J.S.C. For Plaintiff: Einig & Bush LLP 420 Lexington Avenue, Suite 2320 New York, New York 10170 For Defendant Cornelius B. Speiring Elaine H. Nissen, Esq., Guardian 41 Madison Avnue, Suite 4000 New York, NY 10010 (212) (212) 983-8866 Gregory Soumas, Esq. Receiver Bedford & Soumas LLP 112 Madison Averiue, 8~ Floor New York, NY 10016 (212) 685-3539 For Defendant Michael Beltrami Walter Jennings, Esq. 708 Third Avenue, 5th Floor New York, NY 10017 . (212) 732-.0091 257-5845 Papers considered in review of this motion seeking an Order setting the compensation for the Court appointed receiver: Numbered Papers .1-8 9-15 16 17-23 Order to Show Cause, Affirmation, Exhibits Affirmation in Opposition, Affidavit, Exhibits Affirmation in Opposition Reply Affirmation, Affidavit and Exhibits In this foreclosure action, Gregory Soumas, Esq., the Receiver named herein on March 29, 2016, moves for an Order setting his 2 of 7 [* 2] compensation for services rendered.in connection with the property located at 36 Commerce Street . ' New York, New York 10014. This action was commenced on January 30, 2014. of the pleadings, . Beltrami appearance by counsel. served On August 5, an answer 2014, After service and a notice of plaintiff moved for, inter alia, summary judgment and for the appointment of a referee to compute. the Before this motion could be decided, Beltrami died and case was stayed on October 7, 2014, until representative could be substituted for the decedent. .a proper On May 15, 2015 the stay was vacated, the caption amended and the parties were ordered to appear for a preliminary conference. 14, 2015, Beltrami' s attorney moved to have this removed to Surrogate's Court. 1 On August 26., On or after July 2015, entire matter This motion was denied. Beltrami moved for summary judgment seeking dismissal, based upon the notion that the chain of title to the promissory note was defective. the motion was denied. inter alia, for Such was far from the case, and On September 18, 2015, plaintiff moved for summary judgment, appointment of a referee and receiver and a default judgment against the non-appearing parties. Only Beltrami opposed the motion, 1 and only once did counsel In the meantime, yet another attorney needed to get involved because neither Spiering's nor his guardian were domiciliaries of-New York State, therefore Elaine Nissen, Esq. had to substitute in as an ancillary guardian for Spiering. This motion was granted on September 15, 2015, even though Elaine Nissen is not listed on the Part 36 approved list of fiduciaries. 2 3 of 7 [* 3] indicate that the property was being listed as a rental property and not for sale. granted and the On March Receiver 2 8, was 2016, plaintiff's appointed. It is motion noted was that Speiring's ancillary guar~ian never attemp~ed to inform this Court that she was attempting to sell the property, a six story townhouse in one of the most sought after neighborhoods in New York City. In the meantime the Receiver retained a real estate broker and took possession of the property. What the Receiver discovered when he entered the premises with the real estate broker was a premises that was not in a habitable state on or about April 3, 2016. The real estate broker determined that until certain repairs were made to the building it could not be leased for the full fair market value. I Plaintiff was made aware of the condition of the property and after extensive conferences with the Receiver, expenses incurred to make repairs to the premises. with I the repairs, the Receiver prepared and paid 2 all th~ Concurrently consulted with plaintiff regarding the terms and conditions to be included in the lease and the amount of rent to be sought, approximately $17, 500. 00 per month. The real estate broker marketed the building for rent and met with "multiple prospective lessees," and as a "direct Notably, when the closing of the property occurred Beltrami reimbursed plaintiff for the repairs that were made to the premises at the direction of the Receiver, as well as, plaintiff's attorneys' fees. 2 3 4 of 7 I I [* 4] result of [his] effotts, [he] found a lessee who was financially qualified ... and who was ready, willing, and able to execute a two year lease for the subject premises." Thereafter, the Receiver was sent an invoice from the real estate broker for services rendered in the amount of $17,950.00. The building was sold to a third party who ultimately closed title on or about June 2, 2016. ~ut not before Spiering's attorney sent the following letter, via e-mail to the Receiver stating "the sum released ($22,500.00) represents full satisfaction of your fees and all charges associated with any work you or your agents may have conducted at the property." Unfortunately, because a tenant never took possession of the building, nor'was a lease signed, it is unclear if the real estate broker is entitled to be paid his usual commission of one month's rent. During th~ course of the Receiver's work, Spiering's ancillary guardian did nothing but attempt to thwart the Receiver's efforts to comply with his fiduciary duties, including attempting motion practice to stop the Receiver from continuing his responsibilities, thereby causing the Receiver, to expend more of his time than was necessary, had this not occurred. Plaintiff does not oppose the Receiver's application for compensation and in fact submitted an affirmation in support of the motion. Defendants, Speiring and Beltrami oppose the application, suggesting (1) that the Receiver did not adequately support his 4 5 of 7 [* 5] application and (2) that the Receiver is not entitled to compensation for his services. The real question is whether there were special circumstances that make it equitable to grarit the Receiver's request for fees and expenses even though the expenses exceeded the rent that would hav~ been collected. Where evidence submitted by the Receiver, which he did submit, establishes that the receivership was conducted with the concern utmost property, and necessary to for that ~emedy physical money was and economic judiciously preservation spent only as of was numerous violations on premises and to preserve property for benefit. of party from whom the payment was sought, such applications are granted. Sun Beam Enterprises, Inc. v Liza Realty Corp. 210 AD2d 153 [l5t Dept 1994]) Under the circumstances presented, · this Court chooses providently exercise its discretion in determining that to special circumstances do exist for reimbursement of the reasonable value of the services provided by the Receiver (see Sun Beam Enters. v Liza Realty Corp., 210· AD2d 153, Alley Spring Apts. Corp., this Court accordance may with [l5t Det 1994]); 94 AD2d 13, 16, properly .fix the the [2nd Dept_ 1983]). Thus, Receiverjs ' services respective Li tho Fund Equities v [he] compensation renderedu "in (CPLR 8004 [b]) . A ·receiver, as an officer of the court; can have no liability for actions performed "within the scope of his authority pursuant 5 6 of 7 [* 6] to the receivership order" Devs., 227 AD2d 306, (Bankers Fed. Sav. v Off W. Consequently, the Receiver's [l8t Dept 1996]) application is granted in part and denied in part. the Receiver deems it Broadway appropriate to reimburse In the event the real estate broker for his out-of-pocket expenses from his fee award, he may do so at his discretion. The balance of defendants' cbntentions have been considered and are deemed to be without merit. Accordingly, it is ORDERED that the Receiver, Gregory Soumas, Esq., shall retain the sum of $16,950.00 for the services rendered in connection with the receivership established.by this Court, from the funds tlat may be in the Receiver's possession; and it is further ORDERED that· the Receiver is hereby discharged; and it is further ORDERED th~t the Receiver's Surety bond, is also di~charged; and it is further ORDERED that Gregory Soumas, Esq. Shall take whatever steps necessary to effectuate the directives of this Deci~ion forthwith. Dated: August 24, 2016 E N T E R: I~ Hon~enney ~ J. 6 7 of 7 s .c. & Order
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