Grayson v Fruchter

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Grayson v Fruchter 2018 NY Slip Op 31974(U) August 10, 2018 Supreme Court, New York County Docket Number: 603272/2006 Judge: Marcy Friedman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 08/14/2018 12:23 PM 1] NYSCEF DOC. NO. 241 INDEX NO. 603272/2006 RECEIVED NYSCEF: 08/14/2018 SUPREME COURT OF THE STATE OF NE\V YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 60 -------------------------------------------------------------------->:: INDEX NO. ROBERT GRAYSON, 603272/2006 Plaintiff, NIOTION DATE -v- STEPHEN FRUCHTER, STEPHEN FRUCHTER, as Executor for the Estate of PHILLIP FRUCHTER, MONTA..UK RUG & CARPET CORPORATION, and 111 \VEST 24TH STREET LP, :MOTION SEQ. NO. 009 DECISION AND ORDER Defendant HOK MARCY S. FRIED:tviAN: The following e-filed documents, listed by NYSCEJ: do<:ument number (Motion 009) 199, 200, 201, 202, 203, 204,205,206,207,208,209,210,211,212,213,214,216,217,218;219,220,221,222,235,237,23~239,240 were read on this motion to/for APPROVE/SETTLE ACCOUNTING rn the above-captioned action (2006 Action), by order dated October 7, 2011, this court (Fried, l) appointed David Rosenberg, on consent of the parties, as temporary receiver pending the determination of this action, of defendant Montauk Rug & Carpet Co11Joration (Montauk), "hut for the assets of 111 West 24th Associates a/k/a [defendant] 111 West 24th Street, LPo" (Associates), By order of the same date, this court (Fried, l) appointed Mr. Rosenberg, on consent, as temporary receiver of all of the rents and profits dut; and unpaid issuing out of the premises located at 111 West 24th Street (the premises\ In a related action brought by Lilian Grayson, who \Vas substituted after her death by Robert Grayson as Representative of the Estate of Lilian Grayson (102120/2008 [2008 ActionJ), 1 also by order dated October 7, 2011, this court (Fried, Jo) appointed David Rosenberg, on consent, as temporary receiver pending the 1 Such substitution was made by order of this court (Friedman, J.) dated March 12, 2013. Page 1or6 1 of 6 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 12:23 PM 2] NYSCEF DOC. NO. 241 INDEX NO. 603272/2006 RECEIVED NYSCEF: 08/14/2018 603272/2006 GRAYSON, ROBERT vs. FRUCHTER, STEPHEN Mofam No. 009 Associates and Montauk" By stipulation dated August····-' 2015, the p.arties agreed to "terminate the receivership." The stipulation further stated that the parties had entered into a Settlement Agreement and had agreed to discontinue both actions. By order dated August 21, 2015, the court (Friedman, J.) directed that Mr. Rosenberg '"fbrthwith cease to perfr)m1 any services at or for [Montauk] and [Associates]" and that he move, no later than October 2, 2015, for formal tem1ination of the receivership and for approval of a final accounting. By letters so-ordered on September 30, 2015 and November 5, 2015, the court granted Mr. Rosenberg's requests for an extension of time to co.mply with the August 21, 2015 order until January 15, 2016. On January 15, 2016, IV1r. Rosenberg filed his report and final accounting, sworn to on the same date. (Jan. 15, 2016 Repmi of David Rosenberg [2006 Action, NYSCEF Doc. No. 195; 2008 Action, NYSCEF Doc. No. 75].) By order dated Febmary 10, 2016, the court directed that Mr. Rosenberg file a motion, by Febmary 29, 2016, for approval of a final accounting and of any requested foes. On Febmary 29, 2016, by motions in both actions returnable on April 5, 2016, Mr. 2 This order was only filed in the 2006 Action and not in the 2008 Action. Page 2 of6 2 of 6 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 12:23 PM 3] NYSCEF DOC. NO. 241 INDEX NO. 603272/2006 RECEIVED NYSCEF: 08/14/2018 6lH272i20fJ6 GR.A YSON, ROBERT vs. FRUCHTER, STEPm:N M.otion No, 009 Transcript, at 30-34.) No papers were filed as of December 2016. At that time, the comt was infonned of the death of Paul Grayson and, by order dated December 19, 2016, stayed all proceedings pending substitution of the decedent's personal representative. No such substitution was made. On its own motion and on further consideration of governing legal authority, the court ruled, by decision and order dated March 9, 2018, that the stay should be lifted. The court also directed that the supplemental submissions, specified in the July 20, 2016 transcript, be served rmd filed by April 20, 2018. The parties complied with this submission schedule. After hearing the parties on a telephone conference on the record on August 8, 2018, the court determined that the branch of the motions for legal foes payable to MRD for services in connection with the receivership should be referred to a Special Referee. The court also confirmed that no party had any objection to the :final accounting-the January 15, 2016 Report Page 3 of 6 3 of 6 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 12:23 PM 4] NYSCEF DOC. NO. 241 INDEX NO. 603272/2006 RECEIVED NYSCEF: 08/14/2018 6032i2/2006 GRAYSON, ROBERT vs. FRUCHTER, STEPHEN Motion No. 009 235; 2008 i-\C.tiOil~ NYSCEF 108}:~ Rz.)ser1berg 1s u~nal}le to obtain be he a.rd; (2) 3004 that he 565~566 disptJtes of faet as to the exter1t zyf the 3 }\H of the p;}~'t~cs ~n both actk~n$ \~··ere present (~t ~he tek:phnne confi~renee~ V·litb th(: except3on represen~\~ti~/e has to d:~.tt~ be(:n sub~;tU:ut(~d in either actiz~n for d:.~ctdtnt Pau] (5~.-~~)·Ton. 4 of 6 that nn persona~ [*FILED: NEW YORK COUNTY CLERK 08/14/2018 12:23 PM 5] NYSCEF DOC. NO. 241 INDEX NO. 603272/2006 RECEIVED NYSCEF: 08/14/2018 603272/2006 GRAYSON, ROBERT vs. FRUCHTER, ST.EPHEN Motlmi No. 009 approval of checks). 4 These issues cannot be determined on the record before the court It is accordingly hereby ORDERED that the fr)llowing issues are refem:.d to a Special Referee to hear and report \Vith recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as pem1itted by CPLR 4317, the Special Referee, or another person designated by the parties lo serve as reforee, shail determine the foregoing issues: 1. The amount of commissions payable to David Rosenberg, temporary receiver, including but not limited to whether commissions should be m:varded at the rate of five percent or v.rhether that percentage should be reduced; and whether interest should be awarded on the comrnissions and, if so, the date from which such interest should be m:varded, and 2. The amount of reasonable attorney's fees, costs, and disbursements payable to Marcus Rosenberg & Diamond LLP, including but not limited to the date from which attorney's fees should be m:vardcd; the services for which such foes should be awarded; the amount of such fees; and whether interest should be mvarded on such fees and, if so, the date from which interest should be awarded; and it is further ORDERED that, within l 5 days from the date of entry of this decision and order, :P,,fr Rosenberg shall serve a copy of this decision and order \Vi th notice of entry upon all parties by NYSCEF, unless any party is exempt, and by overnight mail, and shall e-fiie proof of 4 It is noted that the October 7, 201 l appointing orders in the 2006 and 2008 Actions provided that "Montauk's employees shall operate Montauk's retail carpet business in all respects except as limited herein." Defondants oppose an award of five percent commissions to Mr. Rosenberg based in part on the fact that he was not involved in the day-to-day management of the business. While that fact may be considered in determining the proper amount of commissions, il is not a per se basis for declining to award commissions. CS.t\2 generiJ.lb: fk~t.l~J.~Y>'._ _''.(9J.kJ1~mJ;Jhr B_y§,__'L4U_JY..,..4_21h__SL.R~-~Jl:.L.C..9Iil,, 252 t-'\D2d 460, 460A61 [1st Dept 1998J [in awarding commissions, a court may properly consider the amount of work performed by the receiver or delegated to others].) P;;ige 5 of 6 5 of 6 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 12:23 PM 6] INDEX NO. 603272/2006 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 08/14/2018 6iU272/2006 GRAYSON, ROBERT vs. FRUCHTER, STEPHEN Motion No. 009 compliance within 10 days after the aforesaid service; and it is further ORDERED that counsel for the parties shall promptly inform Mr. Rosenberg of the identity and addresses for any executor(s) appointed for Paul Grayson and of the names and addresses of any counsel retained by such executor(s); and it is further ORDERED that, within 15 days of the date on which Mr, Rosenberg is provided by counsel for the parties with the aforesaid infom1at1on regarding the executor(s) for Paul Grayson and their counsel, if any, Mr. Rosenberg shall serve a courtesy copy of this decision and order \Vith notice of entry by overnight mail upon such executor(s) and counsel, and shall e-file proof of compliance within 10 days after the aforesaid service; and it is further ORDERED that, within 30 days of the date of entry of this decision and order, Mr. Rosenberg shall serve a copy of this deeision and order with notice of entry on the Clerk of the Special Refr~ree's Office (Room 119); and it is further ORDERED that a motion to confirm or reject the repmi of the Special Referee shall be made within 15 days of the filing of the report. ..,.. ,.···"~.1 .~:~ .· :· :· : ·; / .... ..·····"·>•n...~ ' .,,''......,,·/"·"·''"""-.,....·.•..." ,, , .......l:':_~(::~::~'.·::'.:~(~::>:};~·~::'.'~:::::~~~~L~::~~-:.::::::~............. ,._., CHECK ONE: [~] ! APPLICATION; CHECK lF APPROPR1ATE: CASE DiSl'OS£D 1· GRANTED !'""" f""~1 t,~I SETTLE ORDER D ! MA~J;.t:...~~·yi:tffDMAN, . Vi.C f NON.FINAL diiPoSl'ilON INCLUDES TRANSFER/REASSIGN j i GRANTED 1N PART j DENHm , i SUBMIT ORDER LJ fJDl!ClARY APPOl.NTMENT I x 0 1 OTHER REFERENCE Page 6 of 5 6 of 6

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