Somerville House Management, Ltd. v. American Television Syndication Co., Inc.

Decision Date24 April 1984
Citation474 N.Y.S.2d 756,100 A.D.2d 821
PartiesSOMERVILLE HOUSE MANAGEMENT, LTD., Plaintiff-Appellant, v. AMERICAN TELEVISION SYNDICATION COMPANY, INC. et al., Defendants-Respondents.
CourtNew York Supreme Court — Appellate Division

J.A. Vassallo, New York City, for plaintiff-appellant.

M.B. Golden, New York City, for defendants-respondents.

Before KUPFERMAN, J.P., and ROSS, ASCH, SILVERMAN and LYNCH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered November 21, 1983, which denied plaintiff's motion for appointment of a temporary receiver, is unanimously reversed on the law and facts and the motion granted, with costs and disbursements payable to plaintiff. Order of the Supreme Court, New York County, entered December 6, 1983, which denied plaintiff's motion for partial summary judgment against defendant American Television Syndication Company, Inc., is affirmed, without costs.

Plaintiff Somerville House Management, Ltd. (Somerville) is a Canadian corporation which, inter alia, represents investors who provide financing for theatrical properties including television series. The corporate defendant American Television Syndication Company, Inc. (ATS) is a New York corporation which distributes television programs. The individual defendant O'Daly is the chief executive officer and controlling shareholder of ATS. Plaintiff executed an agreement with ATS and a third party, dated October 15, 1982.

The Agreement gave ATS the right to distribute 13 one-hour programs of the 1983 television series entitled "An Evening at the Improv". Plaintiff entered into the contract as the representative of persons who provided financing for the production of these programs. The Agreement gave plaintiff Somerville the right to receive all proceeds from the distribution of the programs by defendant ATS, except for certain specific costs and fees. All proceeds were to be segregated and maintained in a separate bank account and plaintiff was given a security interest in them. The Agreement also guaranteed that plaintiff would be paid at least $676,000 by September 30, 1983.

During March of 1983, plaintiff allegedly learned that defendant ATS was in breach by failing to establish separate trust accounts, commingling funds received with other accounts; and failing to inform various licensees to pay distribution fees to the trust account. Through a letter dated March 22, 1983, plaintiff's counsel informed defendants of their default under the terms of the Agreement and sought to have defendants cure its defaults. When this and subsequent correspondence failed to resolve the dispute, the instant action was commenced. Plaintiff also moved for a temporary receiver pursuant to CPLR 6401(a) by order to show cause, containing a temporary restraining order enjoining defendants from withdrawing the funds in the trust account.

Special Term denied the motion for appointment of a receiver and vacated the temporary restraining order (which was reinstated by an order of this Court on December 20, 1983) holding, inter alia: "There has not been an adequate demonstration by plaintiff that there is a substantial likelihood that the assets will be subject to waste or mismanagement [citation omitted]. Additionally, it appears that the parties herein...

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7 cases
  • Beatty v. Williams
    • United States
    • New York Supreme Court — Appellate Division
    • 31 d5 Maio d5 1996
    ...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 In light of the issues of fact re......
  • Dolgoff v. Projectavision, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • 23 d4 Janeiro d4 1997
    ...damage to such property (CPLR 6401), the appointment of a temporary receiver is warranted (see, Somerville House Mgt. v. American Tel. Syndication Co., 100 A.D.2d 821, 822, 474 N.Y.S.2d 756). We remand the matter to Supreme Court for the purposes of appointing a temporary receiver who will ......
  • Gulf & Western Industries, Inc. v. Seaboard Sur. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • 24 d2 Abril d2 1984
  • Lefebvre v. Shea
    • United States
    • New York Supreme Court — Appellate Division
    • 9 d4 Fevereiro d4 1995
    ...is far from secure, and it appears that much of the estate has already been dissipated (see, Somerville House Mgt. v. American Tel. Syndication Co., 100 A.D.2d 821, 822, 474 N.Y.S.2d 756; Gimbel v. Reibman, 78 A.D.2d 897, 897-898, 433 N.Y.S.2d 217; cf., Wong v. Wong, 161 A.D.2d 710, 711, 55......
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