Inc. v. Mastic Beach Prop. Owners Ass'n, Inc.

• Decision Date: 09 January 2013
• Docket Number: No. 11–9188.,11–9188.
• Parties: INCORPORATED VILLAGE OF MASTIC BEACH, Plaintiff, v. MASTIC BEACH PROPERTY OWNERS ASSOCIATION, INC., Defendant.
• Court: New York Supreme Court

38 Misc.3d 1215
967 N.Y.S.2d 867
2013 N.Y. Slip Op. 50106

INCORPORATED VILLAGE OF MASTIC BEACH, Plaintiff,
v.
MASTIC BEACH PROPERTY OWNERS ASSOCIATION, INC., Defendant.

No. 11–9188.

Supreme Court, Suffolk County, New York.

Jan. 9, 2013.

Sinnreich Kosakoff & Messina LLP, Central Islip, NY, for Plaintiff.

Milber Makris Plousadis & Seiden, LLP, Woodbury, NY, for Defendant.

JERRY GARGUILO, J.

Upon the following papers numbered 1 to 59 read on this motion for the appointment of a receiver/preliminary injunction and cross motion to dismiss; Notice of Motion/ Order to Show Cause and supporting papers 1–12; Notice of Cross Motion and supporting papers 37–47; Answering Affidavits and supporting papers 13–15, 50–51; Replying Affidavits and supporting papers 18–29, 53–54; Other sur-reply 31–36, 57–58; memoranda of law 16–17, 30, 48–49, 52, 55–56, 59; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that the motion by the plaintiff for the appointment of a receiver of the real property currently owned by the defendant and to manage the defendant's operations in the maintenance, administration, collection of rentals and other income relating thereto while this action is pending, for a preliminary injunction enjoining the defendant until the determination in this action from 1) taking any action regarding monies collected from the fees, income, revenues or rental of said property; 2) accepting any fees, income, revenues or rental derived from said property and disbursing same; and 3) assigning, mortgaging, pledging, leasing, or taking any action affecting or encumbering the title, use, status and possession of said property, and for an order directing the defendant to account to the Court and the plaintiff for all monies generated from said property, is denied; and it is further

ORDERED that the cross motion by the defendant for an order pursuant to CPLR 3211(a)(1), (5), and (7) dismissing the complaint or, in the alternative, dismissing the complaint pursuant to CPLR 3211(c), on the grounds that it is entitled to judgment as a matter of law in accordance with RPL 345 and/or EPTL 9–1.1, is denied.

This is an action to enforce the provisions in a deed dated July 30, 1940 and recorded on August 9, 1940 (the deed), in which the grantor conveyed certain real property (the property) to the defendant which, upon the formation of an incorporated village of Mastic Beach, was to be conveyed or dedicated by the defendant to said village. It is undisputed that the plaintiff was incorporated on September 16, 2010 as the Incorporated Village of Mastic Beach (plaintiff or Village). Thereafter, the plaintiff made a written request to the defendant to transfer title to the property to the Village, which was rejected. By letter dated January 21, 2011, the plaintiff demanded that the defendant deliver an executed deed and transfer documents sufficient to transfer title to the Village. The defendant has failed to do so. The plaintiff then commenced this action seeking to enforce its rights under the deed.

The plaintiff alleges that the property generally consists of waterfront parcels in the Village on which docks and piers and two marinas are located, that the defendant has rented the docks and piers generating approximately $500,000.00 per year, and that the defendant has improperly retained the revenues generated since September 16, 2010. The plaintiff also alleges that the defendant is not using the property in the manner contemplated by the deed, is using the property and revenues generated therefrom for its own uses without regard to its obligation to transfer the title to the Village, and is wasting the property and revenues.

The plaintiff now moves by order to show cause for the appointment of a receiver, a preliminary injunction, and an order directing the defendant to account for all monies generated from the property. In support of its motion, the plaintiff submits, among other things, a copy of the complaint, a copy of the deed, the affidavit of its mayor, and correspondence between the parties. In his affidavit, Paul Breschard swears that he was elected the first mayor of the newly formed village on November 22, 2010, that the Village requested that the defendant transfer the property to it after its incorporation, and that the defendant has refused to transfer the property. He states that the defendant has breached its obligations with respect to the deed, that the defendant has collected revenues which belong to the Village, and that the defendant is a not-for-profit corporation which is required to use the property for the residents of the Village of Mastic Beach. He further swears that the defendant's “improper use and wasting of the [property] and the [defendant's] exclusive use of the [property] and [revenues],” and the denial of access to all the residents of the Village will cause irreparable harm.

In considering that branch of the plaintiff's motion which seeks the appointment of a receiver, the Court notes that the defendant objects to the plaintiff's submission of a reply which expands on its allegation that the property is being “wasted” or materially injured by submitting additional affidavits, and the plaintiff objects to the defendant's submission of a sur-reply to rebut those affidavits. However, the Court finds that both the reply and sur-reply submitted do not add any new legal arguments or raise additional issues. Both sets of papers merely expand upon, or refute, facts raised in the initial papers submitted in support of and in opposition to the plaintiff's motion, and both parties have had an ample opportunity to respond to the other. Thus, the Court will exercise its discretion and consider both the reply and sur-reply in deciding these motions ( see Bayly v. Broomfield, 93 AD3d 909, 939 N.Y.S.2d 634 [3d Dept 2012]; Whale Telecom Ltd. v. Qualcomm Inc., 41 AD3d 348, 839 N.Y.S.2d 726 [1st Dept 2007]; Allstate Ins. Co. v. Raguzin, 12 AD3d 468, 784 N.Y.S.2d 644 [2d Dept 2004]; Barbuto v. Winthrop Univ. Hosp., 305 A.D.2d 623, 760 N.Y.S.2d 199 [2d Dept 2003] ).

CPLR 6401, entitled “Appointment and powers of temporary receiver” provides: “Upon motion of a person having an apparent interest in property ... a temporary receiver of the property may be appointed ... where there is danger that the property will be removed from the state, or lost, materially injured or destroyed.” However, “[t]he appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits” (Vardaris Tech, Inc. v. Paleros Inc., 49 AD3d 631, 632, 853 N.Y.S.2d 601 [2d Dept 2008] [internal quotation marks omitted]; see Quick v. Quick, 69 AD3d 828, 829, 893 N.Y.S.2d 583 [2d Dept 2010]; Schachner v. Sikowitz, 94 A.D.2d 709, 462 N.Y.S.2d 49 [2d Dept 1983] ). Thus, a temporary receiver should only be appointed where there is a clear evidentiary showing of the...