| Vardaris Tech, Inc. v Paleros Inc. |
| 2008 NY Slip Op 02138 [49 AD3d 631] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Vardaris Tech, Inc., Respondent, v Paleros Inc., DoingBusiness as Grand Café, Appellant. (And Another Title.) |
—[*1] Mitchell & Incantalupo, Forest Hills, N.Y. (Thomas V. Incantalupo and Carlos Guevara ofcounsel), for respondent.
In an action to recover damages for breach of contract, the defendant appeals from an orderof the Supreme Court, Queens County (O'Donoghue, J.), dated April 30, 2007, which granted theplaintiff's motion pursuant to CPLR 6401 for the appointment of a temporary receiver for itsbusiness and assets.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the plaintiff's motion pursuant to CPLR 6401 for the appointment of a temporary receiver forthe defendant's business and assets is denied.
The Supreme Court improvidently exercised its discretion in granting the plaintiff's motionpursuant to CPLR 6401 for the appointment of a temporary receiver of the business and assets ofthe defendant corporation. "The appointment of a temporary receiver is an extreme remedyresulting in the taking and withholding of possession of property from a party without anadjudication on the merits" (Schachner v Sikowitz, 94 AD2d 709, 709 [1983]).Therefore, a motion seeking such appointment "should be granted only where the moving partyhas made a clear evidentiary showing of the necessity for the conservation of the property at issueand the need to protect the moving party's interests" (Lee v 183 Port Richmond Ave.Realty, 303 AD2d 379, 380 [2003]; see Secured Capital Corp. of N.Y. v Dansker,263 AD2d 503, 504 [1999]; DaSilva v DaSilva, 225 AD2d 513 [1996]).[*2]
Here, the unsupported allegations and accusations setforth by the plaintiff fell far short of the required "clear evidentiary showing that property of thecorporation was in danger of being 'removed from the state, or lost, materially injured ordestroyed' " (Lee v 183 Port Richmond Ave. Realty, 303 AD2d at 380, quoting CPLR6401 [a]; see Iannone v Iannone, 31AD3d 713, 715 [2006]; Matter of Kristensen v Charleston Sq., 273 AD2d 312[2000]; cf. Friedman v Ragin, 228 AD2d 642 [1996]). Spolzino, J.P., Santucci,Angiolillo and Carni, JJ., concur.