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Mancuso v. Kambourelis

Appellate Division of the Supreme Court of New York, Third Department
Oct 18, 1979
72 A.D.2d 636 (N.Y. App. Div. 1979)

Opinion

October 18, 1979


Appeal from an order of the County Court of Greene County, entered February 13, 1979, granting plaintiffs' request for appointment of a receiver. Defendants purchased certain property, on which a restaurant was operated from plaintiffs and in return gave a purchase-money mortgage in the sum of $150,000. After defendants defaulted in the payment of amounts due for principal, interest and taxes, the instant foreclosure action was commenced on August 9, 1978. Thereafter, plaintiffs applied for and the court appointed, over defendants' opposition, a receiver and fixed the sum of $2,000 as monthly rent. This appeal ensued. Basically, defendants contend that the court erred in appointing a receiver either pursuant to CPLR 6401 or section 1325 Real Prop. Acts. of the Real Property Actions and Proceedings Law. The mortgage in question, however, specifically authorized the appointment of a receiver on application of the mortgagee in an action to foreclose the mortgage. While such a clause authorizes the appointment of a receiver without notice and without regard to the adequacy of any security (Real Property Law, § 254, subd 10), a court of equity, in its discretion and under appropriate circumstances, may deny the application (Home Tit. Ins. Co. v Scherman Holding Corp., 240 App. Div. 851; 15 Carmody-Wait 2d, § 92:476). On this record, we find no reason to disturb the court's determination. The order should be affirmed. Order affirmed, without costs. Mahoney, P.J., Sweeney, Kane, Staley, Jr., and Mikoll, JJ., concur.


Summaries of

Mancuso v. Kambourelis

Appellate Division of the Supreme Court of New York, Third Department
Oct 18, 1979
72 A.D.2d 636 (N.Y. App. Div. 1979)
Case details for

Mancuso v. Kambourelis

Case Details

Full title:RALPH J. MANCUSO, JR., Also Known as RALPH J. MANCUSCO, JR., et al.…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Oct 18, 1979

Citations

72 A.D.2d 636 (N.Y. App. Div. 1979)

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