Beatty v. Williams

• Decision Date: 31 May 1996
• Docket Number: No. 1,1
• Citation: 227 A.D.2d 912,643 N.Y.S.2d 267
• Parties: James BEATTY, Respondent, v. Lamont WILLIAMS, Appellant, et al., Defendants. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 267

643 N.Y.S.2d 267

227 A.D.2d 912

James BEATTY, Respondent, v. Lamont WILLIAMS, Appellant, et al., Defendants. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department.

May 31, 1996.

Law Offices of Barbara M. Sims by Barbara Sims, Buffalo, for Appellant.

Phillips, Lytle, Hitchcock, Blaine and Huber (Kevin Hogan, of counsel), Buffalo, for Respondent.

Before PINE, J.P., and WESLEY, CALLAHAN, DOERR and BOEHM, JJ.

MEMORANDUM:

Supreme Court properly exercised its discretion in granting plaintiff's motion for the appointment of a temporary receiver of the real property at 11-13 East Utica Street in Buffalo. Plaintiff met his burden of demonstrating that he has an "apparent interest" in the property (CPLR 6401[a]; see, Nelson v. Nelson, 99 A.D.2d 917, 473 N.Y.S.2d 40) and establishing by clear and convincing evidence that there was a likelihood "of irreparable loss or damage" if a receiver were not appointed (Groh v. Halloran, 86 A.D.2d 30, 33, 448 N.Y.S.2d 680; see, Lefebvre v. Shea, 212 A.D.2d 884, 885, 622 N.Y.S.2d 151; Somerville House Mgt. v. American Tel. Syndication Co., 100 A.D.2d 821, 822, 474 N.Y.S.2d 756; cf., Serdaroglu v. Serdaroglu, 209 A.D.2d 606, 608, 622 N.Y.S.2d 51).

In light of the issues of fact regarding the ownership interests of the parties, the court properly denied that part of the cross motion of Lamont Williams (defendant) seeking summary judgment. The court erred, however, in denying that part of defendant's cross motion for an order requiring plaintiff, a non-resident, to post security for costs (see, CPLR 8501[a]; Siegel, NY Prac § 414, at 630 [2d ed]. We reject as excessive the amount of security proposed by defendant, and fix the amount at $5,000 (see, CPLR 8503; Howell v. Rothberg, 197 A.D.2d 815, 602 N.Y.S.2d 969).

The other issues raised by defendant in his notice of appeal are deemed abandoned (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

Order unanimously affirmed without costs.