| Quick v Quick |
| 2010 NY Slip Op 00495 [69 AD3d 828] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Charles E. Quick, Appellant, v Edward Quick, Jr., et al.,Respondents. (Action No. 1.) Edward Quick, Jr., Respondents, et al., Plaintiffs, v Charles Quick,Appellant, et al., Defendants. (Action No. 2.) |
—[*1] Jacobowitz and Gubits, LLP, Walden, N.Y. (Robert E. DiNardo and Kara J. Cavallo ofcounsel), for respondents.
In two related actions, inter alia, for a judgment declaring the parties' rights and obligationsunder a partnership agreement (action No. 1), and to dissolve certain corporations affiliated withthe partnership (action No. 2), which were joined for trial, Charles E. Quick, the plaintiff inaction No. 1 and a defendant in action No. 2, appeals (1), as limited by his brief, from so much ofan order of the Supreme Court, Orange County (Giacomo, J.), dated December 23, 2008, as, suasponte, appointed, pursuant to CPLR 6401, a temporary receiver for the subject partnership, (2)from a decision of the same court (Lubell, J.), dated April 13, 2009, and (3) from an order of thesame court (Lubell, J.), dated May 12, 2009, which, upon the decision, granted, in part, themotion of Edward Quick, Jr., and John Quick, the defendants in action No. 1 and plaintiffs inaction No. 2, to delineate the powers of the temporary receiver.
Ordered that on the Court's own motion, the notice of appeal from so much of the orderdated December 23, 2008, as, sua sponte, appointed, pursuant to CPLR 6401, a temporaryreceiver for the subject partnership, is deemed an application for leave to appeal from thatportion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order dated December 23, 2008, is reversed insofar as appealed from, on thefacts and in the exercise of discretion; and it is further,
Ordered that the order dated May 12, 2009, is reversed, on the law, the motion of EdwardQuick, Jr., and John Quick to delineate the powers of the temporary receiver is denied in its[*2]entirety as academic, and the decision is vacated; and it isfurther,
Ordered that one bill of costs is awarded to the appellant.
The Supreme Court improvidently exercised its discretion in, sua sponte, appointing,pursuant to CPLR 6401, a temporary receiver for the subject partnership. A temporary receivermay be appointed "[u]pon motion of a person having an apparent interest in property which isthe subject of [the] action" (CPLR 6401 [a]). Here, none of the parties moved for theappointment of a temporary receiver (see Sycamore Realty Corp. v Matone, 40 AD3d 843, 843-844[2007]). Moreover, "[t]he appointment of a temporary receiver is an extreme remedy resulting inthe taking and withholding of possession of property from a party without an adjudication on themerits" (Vardaris Tech, Inc. v PalerosInc., 49 AD3d 631, 632 [2008] [internal quotation marks omitted]; see Schachner vSikowitz, 94 AD2d 709 [1983]). Accordingly, a temporary receiver should only beappointed where there is a clear evidentiary showing of the necessity for the conservation of theproperty at issue and the need to protect a party's interests in that property (see VardarisTech, Inc. v Paleros Inc., 49 AD3d at 632; Singh v Brunswick Hosp. Ctr., 2 AD3d 433, 434-435 [2003];Matter of Armienti & Brooks, 309 AD2d 659, 661 [2003]; Lee v 183 Port RichmondAve. Realty, 303 AD2d 379, 380 [2003]; Modern Collection Assoc. v Capital Group,140 AD2d 594 [1988]; Schachner v Sikowitz, 94 AD2d at 709). Here, the record didnot clearly establish the necessity to conserve the partnership's assets, or the need to protect anyof the partners' interests in that property (see Mandel v Grunfeld, 111 AD2d 668 [1985]).
In light of our determination, the order dated May 12, 2009, which granted the motion ofEdward Quick, Jr., and John Quick to delineate the powers of the temporary receiver, must bereversed, the motion must be denied in its entirety as academic, and the decision must bevacated. Covello, J.P., Angiolillo, Lott and Roman, JJ., concur.