| Natoli v Milazzo |
| 2009 NY Slip Op 06815 [65 AD3d 1309] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Vincent E. Natoli et al., Respondents, v Louis EliasMilazzo et al., Appellants. |
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In an action, inter alia, to enjoin the defendants from operating in or entering the plaintiffCathedral Church of St. Lucy's, the defendants Louis Elias Milazzo and Albert Berube appealfrom an order of the Supreme Court, Kings County (Lewis, J.), dated November 24, 2008, whichgranted the plaintiffs' motion for the appointment of a temporary receiver for the plaintiffCathedral Church of St. Lucy's and granted the plaintiffs' cross motion to compel them torespond to the plaintiffs' discovery requests.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion for theappointment of a temporary receiver for the plaintiff Cathedral Church of St. Lucy's and thecross motion to compel the defendants to respond to the plaintiffs' discovery requests are denied.
The Supreme Court granted the plaintiffs' motion for appointment of a temporary receiverfor the plaintiff Cathedral Church of St. Lucy's (hereinafter St. Lucy's) on the ground that thereare issues of fact as to whether the individual plaintiff Vincent E. Natoli, OFM or the individualdefendant Louis Elias Milazzo was the legitimate pastor of St. Lucy's. However, the properanalysis for determining such a motion is whether the movants have submitted clear andconvincing evidence of irreparable loss or waste to the subject property and that a temporaryreceiver is needed to protect their interests (see CPLR 6401 [a]; Vardaris Tech, Inc. vPaleros Inc., 49 AD3d 631, 632 [2008]; Singh v Brunswick Hosp. Ctr., 2 AD3d 433[2003]; Matter of Armienti & Brooks, 309 AD2d 659, 661 [2003]; Schachner vSikowitz, 94 AD2d 709 [1983]).
The record indicates that the plaintiffs failed to satisfy such burden, as they submitted noevidence of irreparable loss or waste to St. Lucy's. Even accepting as true the plaintiffs'allegations that Milazzo committed acts that damaged the assets of another church, such proof isnot clear and convincing evidence that St. Lucy's assets—the property at issue in thisaction—are at risk of irreparable loss or damage (see CPLR 6401 [a]; VardarisTech, Inc. v Paleros, Inc., 49 AD3d at 632; Singh v Brunswick Hosp. Ctr., 2 AD3d433 [2003]).
Moreover, the plaintiffs' submission of documents showing that St. Lucy's was the defendantin a foreclosure action entitled Daniel Perla Assoc., L.P. v Cathedral Church of St.Lucy's, [*2]commenced in the Supreme Court, KingsCounty, under index No. 594/06 was also insufficient, since that action was dismissed by theSupreme Court. Moreover, the order dismissing that action establishes that the defendants hereinwere not involved in the mortgage at issue in that action.
Further, the court should have denied the cross motion because the affirmation of good faithsubmitted by the plaintiffs' counsel was insufficient, as it did not refer to any communicationsbetween the parties that would evince a diligent effort by the plaintiffs to resolve the discoverydispute (see 22 NYCRR 202.7 [c]; Amherst Synagogue v Schuele Paint Co.,Inc., 30 AD3d 1055, 1056-1057 [2006]; Cestaro v Chin, 20 AD3d 500, 501 [2005];see also Baez v Sugrue, 300 AD2d 519, 521 [2002]).
The defendants' remaining contention is without merit. Dillon, J.P., Eng, Belen and Hall, JJ.,concur.