| Ugiri Progressive Community, Inc. v Ukwuozo |
| 2008 NY Slip Op 09784 [57 AD3d 656] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mUgiri Progressive Community, Inc., Appellant, v RaymondUkwuozo et al., Respondents. |
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In an action, inter alia, for injunctive relief, the plaintiff appeals from an order of the Supreme Court,Queens County (Hart, J.), entered May 9, 2008, which, among other things, sua sponte, appointed areceiver to run the subject corporation and supervise a new election, scheduled a new election forofficers of the corporation, and, in effect, suspended the powers of the current officers of thecorporation.
Ordered that on the Court's own motion, the appellant's notice of appeal is treated as anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it isfurther,
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Queens County, for further proceedings before a different Justice.
After commencement of the instant action, the plaintiff moved for preliminary injunctive relief(see CPLR 6301). The Supreme Court never decided that motion. Instead, on its owninitiative, the Supreme Court improperly attempted to adjudicate the rights of the parties with regard toissues beyond the requested preliminary injunction (see Livas v Mitzner, 303 AD2d 381,382-383 [2003]).
In the order appealed from, among other things, the Supreme Court appointed a receiver to run thesubject corporation and supervise a new election, scheduled a new election for officers of thecorporation, and, in effect, suspended the powers of the current officers of the corporation. The partiesdid not petition the Supreme Court to direct a new election (cf. Not-For-Profit CorporationLaw § 618), nor did the parties request the appointment of a receiver or the suspension of thepowers of the current officers. A court " ' "should not interfere in the internal affairs of a [not-for-profit][*2]corporation . . . unless a clear showing is made towarrant such action" ' " (Nyitray v New York Athletic Club of City of N.Y., 195 AD2d 291[1993], quoting Matter of Scipioni v Young Women's Christian Assn. of Rochester & MonroeCounty, 105 AD2d 1113 [1984]). Here, the Supreme Court erred by, in effect, interfering with theinternal affairs of the subject corporation. Further, it undertook such actions without the benefit of ahearing or proof to warrant the same.
Under these circumstances, the error of the Supreme Court requires reversal. Moreover, we deemit appropriate to remit the matter to the Supreme Court, Queens County, for further proceedings beforea different Justice. Rivera, J.P., Dillon, Covello and McCarthy, JJ., concur.