EASTBANK v. MALNEUT REALTY CORP

In its memorandum decision underlying the order appealed from, the IAS court referred erroneously to plaintiff's purported "motion for summary judgment appointing a receiver", whereas in fact the plaintiff did not request appointment of a receiver, and the defendant-appellant Malneut Realty Corp., the owner of the subject premises, did not want a receiver appointed. Plaintiff's mortgage in the amount of $150,000 is the only lien on the subject building, which is worth several million dollars, and Malneut has since posted a $175,000 bond to secure plaintiff's interest. Plaintiff did not satisfy its burden of making a clear evidentiary showing that appointment of a receiver was necessary to conserve the property and to protect plaintiff's interests (Modern Collection Assocs. v. Capital Group, 140 A.D.2d 594; Rabinowitz v. Power, 131 App. Div. 892; CPLR 6401 [a]). Accordingly, the order appointing a temporary receiver was improvidently entered, and it is vacated herewith.

Concur — Carro, J.P., Rosenberger, Wallach, Ross and Asch, JJ.