MARATHON NATL. BANK OF NY v. GREENVALE FIN. CTR.

Full title: MARATHON NATIONAL BANK OF NEW YORK, Plaintiff, v. GREENVALE FINANCIAL…

Court: Supreme Court of the State of New York, Nassau County

Date published: Feb 22, 2011

2011 N.Y. Slip Op. 50678 (N.Y. Sup. Ct. 2011)

Opinion

021794-09.

Decided February 22, 2011.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] STEVEN M. JAEGER, J.

The Temporary Receiver, Joseph Capobianco, moves unopposed pursuant to CPLR § 8004 for interim commissions of five percent (5%) based on collections of $266,331.13 and expenses paid of $148,935.86. As such, Mr. Capobianco is seeking payment of $20,763.35 plus $113.42, for a total of $20,876.77.

The motion is granted insofar as the Temporary Receiver is entitled to interim commissions of $13,316.56 plus $113.42 in expenses, for a total of $13,429.98.

The Temporary Receiver relies on Sunrise Federal Sav. Loan Ass'n v. West Park Ave. Corp., 47 Misc 2d 124 (Sup. Ct., Erie Cty. 1965) for calculating commissions by adding the collections to the expenses and requesting five percent (5%) of the total. However, more recent and controlling decisions have found that interpretation of CPLR § 8004 to be incorrect.

CPLR § 8004 provides for a receiver to be paid "five percent upon the sums received and disbursed". However, "and" does not mean "plus" as that would result in double payment. Instead, a receiver should be paid commissions based upon gross receipts, all of which will be disbursed or transferred. See, WF Shirley, LLC v. William Floyd Plaza Associates, 270 AD2d 255 (2nd Dept. 2000); citing Coronet Capital Co. v. Spodek, 202 AD2d 20 (1st Dept. 1994); See also, Eastrich Multiple Investor Fund, L.P. v. Citiwide Development, 218 AD2d 43 (1st Dept. 1996), in which the Court declined to adopt dicta from New York State Mortg. Loan Enforcement and Admin. Corp. v. Milbank Site One Houses, Inc., 151 AD2d 924 (1st Dept. 1989) finding that commissions should be paid only on that amount that was collected and disbursed, meaning the lesser amount of the two.

Based upon the foregoing, the Temporary Receiver, Joseph Capobianco, may withdraw $13,316.56, five percent (5%) of $266,331.13 in gross receipts, as an interim commission, and $113.42 for reimbursement of expenses, for a total of $13,429.98 from the Receiver's account. This covers the period of August 1, 2010 through December 31, 2010, subject to a final accounting. CPLR § 6404.

This constitutes the Decision and Order of the Court.