| Chang v Zapson |
| 2009 NY Slip Op 07950 [67 AD3d 435] |
| November 5, 2009 |
| Appellate Division, First Department |
| Janet Chang, Individually and in the Right of 207 Second AvenueRealty Corp., Appellant, v Michael G. Zapson, Respondent, et al., Defendant. GoldenCity Commercial Bank, Plaintiff, v 207 Second Avenue Realty Corp., Appellant, et al.,Defendant. Michael G. Zapson, Nonparty Respondent. |
—[*1] Vernon & Ginsburg, LLP, New York (Mel B. Ginsburg of counsel), for 207 Second Ave.Realty Corp., appellant. Kantor, Davidoff, Wolfe, Mandelker, Twomey & Gallanty, P.C., New York (Lawrence A.Mandelker of counsel), for respondent.
Orders, Supreme Court, New York County (Milton A. Tingling, J.), entered April 3 andSeptember 25, 2008, which respectively approved the successor temporary receiver's finalaccounting in this consolidated action and dismissed plaintiff Janet Chang's complaint allegingmalfeasance against the successor temporary receiver, unanimously modified, on the facts, theaward of fees to the receiver's attorneys vacated, the matter remanded for a hearing on thereasonable value of legal services rendered to the receivership, and otherwise affirmed, withcosts in favor of defendant Zapson, payable by Chang.[*2]
The plenary action, in which 50% owner Janet Changalleged malfeasance against the successor temporary receiver, was properly dismissed becauseChang had been denied leave of court to bring the action (see Copeland v Salomon, 56NY2d 222, 228 [1982]; Collins v Vickers, 296 AD2d 320 [2002], lv denied 98NY2d 615 [2002]), and was thus without legal capacity to file such a suit (CPLR 3211 [a] [3]).Dismissal was also appropriate because there was another action pending between these partiesinvolving the same causes of action (CPLR 3211 [a] [4]). Chang's reliance on San Ysidro Corp. v Robinow (1 AD3d185, 186 [1st Dept 2003]) is misplaced. In San Ysidro, we held that a summonswith notice cannot suffice as a predicate for the "prior pending action" requirement of CPLR3211 (a) (4). Such is not the case here where the "prior pending action" is the New York Countyaction commenced years before Chang's Westchester filing of a summons with notice.
Having considered the evidence of record, including the papers submitted in support of themotion for an order settling the successor temporary receiver's final account, we reject Chang'scontention that the commission awarded to the successor temporary receiver for the rents andprofits of the subject premises in the underlying mortgage foreclosure actions was excessive. Thecommission paid was within the legal limit of no more than 5% of the amount collected anddisbursed by the receiver (CPLR 8004 [a]), and was justified in light of the complexities of thereceivership. The receiver rendered a proper accounting documenting his services in adequatedetail (see New York State Mtge. Loan Enforcement & Admin. Corp. v Milbank Site OneHouses, 151 AD2d 424 [1989]).
The court properly determined that the successor temporary receiver was entitled to recoverthose attorney fees and costs incurred in retaining outside counsel starting in August 2004, whichwere based upon court orders expressly authorizing the retention of such counsel, and wereundisputably supported by proper affidavits of services rendered.
We conclude, from this record, that the court was authorized to approve nunc pro tunc theappointment of outside counsel to assist the receiver from 1996 through 2002 (see Bozewiczv Nash Metal Ware Co., 280 AD2d 443 [2001]). However, the court lacked adequateinformation from which to assess the value of the legal services rendered during that time(see Bankers Fed. Sav. Bank v Off W. Broadway Devs., 224 AD2d 376 [1996];Matter of T. J. Ronan Paint Corp., 98 AD2d 413, 419-420 [1984]). A hearing isnecessary to determine whether the amount of fees paid by the receiver from 1996 through 2002was reasonable in light of the legal services rendered. Concur—Sweeny, J.P., Buckley,Catterson, Acosta and Freedman, JJ.