Opinion
June 4, 1985
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Hancock, Jr., J.P., Callahan, Denman, O'Donnell and Pine, JJ.
Order unanimously modified, on the law, to reduce the coreceivers' allowance to $74,910.40, and, as modified, affirmed, without costs. Memorandum: In a previous judicial proceeding it has been determined as law of the case that the appointment of coreceivers Galluch and Skokowski was properly made by Supreme Court pursuant to Public Health Law § 2810 (see, People v. Abbott Manor Nursing Home, 70 A.D.2d 434, 438, 439, affd 52 N.Y.2d 766); the State is therefore precluded from relitigating that issue (see, Martin v. City of Cohoes, 37 N.Y.2d 162, 165). Another related proceeding resulted in determinations that the receivership was imposed by the court as a remedial device "to respond to the State's insistence that the Abbott Manor Nursing Home remain operative" and "as the means to force the continued operation" of the home and that such imposition of the receivership constituted a temporary taking by the State (Birnbaum v. State of New York, 99 A.D.2d 652 [unanimously affg order and judgment of Court of Claims for reasons stated in mem thereat], lv dismissed 63 N.Y.2d 675). The application of the doctrine of collateral estoppel precludes relitigation of those issues (see, Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 72). Accordingly, we affirm the determinations implicit in the order of Supreme Court and the summary judgment of the Court of Claims that the State is the party responsible for the appointment of the coreceivers and the party liable for the payment of their commissions and the fees of the attorney for the receivership. We find, however, that Supreme Court erred in allowing commissions under CPLR 8004 in an amount equal to the aggregate of 5% of the sums received and 5% of the sums disbursed. We reduce the amount to 5% of the total receipts or $74,910.40 (see, City of New York v. Big Six Towers, 59 Misc.2d 839, 842, affd 33 A.D.2d 658; Cornell Assoc. v. Euston Props. Corp., 50 Misc.2d 813, 815; New York Bank for Sav. v Jamaica Towers W. Assoc., 49 Misc.2d 230, 232; Bowery Sav. Bank v. 566 Amsterdam Ave. Corp., 32 Misc.2d 459, 460). Even if we were to apply the contrary rule adopted by Supreme Court (see, Sunrise Fed. Sav. Loan Assn. v. West Park Ave. Corp., 47 Misc.2d 940) we would, in the exercise of our discretion, reduce the commissions to the above amount, considering that the coreceivers are being compensated by the payment of their salaries and that a large percentage of the receipts of the nursing home are Medicaid payments made by the State. We find no reason to disturb the amount fixed for attorney's fees.