ROBERT W. SWEET, District Judge.
Petitioner BSH Hausgerate GMBH ("BSH" or the "Petitioner") has moved under Fed. R. Civ. P. 66 and New York C.P.L.R. § 5228(a) for the appointment of a receiver to administer, collect, and sell the real property owned by Respondent Jak Kamhi ("Kamhi" or the "Respondent") located at 15 West 53rd Street, Apt. 32B, New York, NY 10019 (the "Property"), which is currently secured by an Order of Attachment.
Based upon the conclusions set forth below, the motion is granted. The Court-ordered receiver is Stuart N. Siegel, of Engel & Volkers New York Real Estate LLC.
Background on the parties, their arbitration agreements, the foreign arbitration process before a panel of three arbitrators (the "Arbitral Tribunal"), the Final Award, and confirmation of the Final Award are set forth in this Court's October 18, 2017 Opinion (the "October Opinion"), and its March 02, 2018 Opinion (the "March Opinion").
On October 2, 2003, BSH and Kamhi entered into a Share Sale and Purchase Agreement, under which BSH purchased shares in BSH Profilo Elektrikli Gerecler Sanayii A.S. (the "SPA-BSH").
On October 7, 2003, Kamhi also signed a separate Share and Sale Purchase Agreement with another party (the "SPA-DB" and, together with the SPA-BSH, the "Agreements"), and to which BSH was not a party.
On October 7, 2013, Kamhi, one of five claimants (the "Claimants"), submitted a Request for Arbitration to the ICC.
During the arbitration proceedings, BSH and the other respondents in the arbitration moved to have the arbitration bifurcated as to whether (i) the DA's termination automatically terminated the SPA-BSH (the "Automatic Termination Claim") and (ii) BSH caused the breach of the DA (the "Breach Claim"); on August 11, 2015, after briefings, an initial denial, and a renewed motion for bifurcation, the Arbitral Tribunal granted the request. Declaration of Eric J. Przybylko dated September 14, 2017 ("Przybylko Decl."), Exs. 2-3, 7, Dkt. No. 39. The Arbitral Tribunal noted that, after resolving the question of automatic termination, subsequent issues, "if any, will be determined by the [Arbitral] Tribunal in consultation with the Parties."
On February 6, 2017, the Arbitral Tribunal issued its Final Award, awarding BSH a money judgment against the Claimants in the amount of: (1) $544,230; (2) €1,900,487.13; and (3) interest on those amounts under Article 4(a) of the Turkish Law No. 3095, at the applicable rate, compounded annually, from February 7, 2017 until full and final settlement of the award.
On August 1, 2017, an Order of Attachment was issued by this Court, securing a total amount of $3,000,000, which was levied "upon the real property at 15 W. 53
On March 2, 2018, this Court issued its March Opinion, confirming the Final Arbitration Award.
On April 3, 2018, Final Judgment was entered by this Court, awarding $544,230 in BSH's favor against Kamhi, €1,900,487.13 in BSH's favor against Kamhi, and interest on both amounts totaling $6,270.57 and €10,941.47, respectively.
On April 3, 2018, BSH moved under Fed. R. Civ. P. 64, 66, and 69, as well as N.Y. C.P.L.R. § 5228(a), to appoint a receiver to administer, collect, and sell the Property, in order to satisfy the Final Judgment.
Section 5228 of New York's C.P.L.R. vests with courts the discretion to appoint a receiver "to administer, collect, improve, lease, repair or sell any real or personal property in which the judgment debtor has an interest or to do any other acts designed to satisfy the judgment." N.Y. C.P.L.R. 5228 (McKinney). If appointed, the Court's "order of appointment shall specify the property to be received, the duties of the receiver and the manner in which they are to be performed."
In exercising discretion to appoint a receiver, courts consider three factors: "(1) alternative remedies available to the creditor . . .(2) the degree to which receivership will increase the likelihood of satisfaction . . . (3) the risk of fraud or insolvency if a receiver is not appointed."
As to the first factor, Petitioner contends that, because Defendant's only asset in New York is the Property, its sale is necessary to satisfy the judgment, and a receiver sale is the best way to accomplish the sale.
Respondent argues in opposition that BSH has alternative remedies available. Resp. Memo. in Opp., ECF No. 72. First, Kamhi notes that it offered to BSH an ownership interest in a "brand name for marketing small consumer electronics in Turkey."
As to whether a receiver would "increase the likelihood of satisfaction," (
Petitioner also cites an August 2017 online listing of the Property by a private broker on Streeteasy.com for $3.495 million ("The Ad").
The only evidence adduced regarding the Property's market value is The Ad, which suggests that sale by a receiver, rather than a sheriff, would satisfy the judgment. Buell Decl., Ex. B, ECF No. 56-2. The Second Circuit has recognized that "a traditional sale by the sheriff at auction to the highest bidder, with no supervision by a court office, would not suffice to protect the government's interest."
While no evidence has been adduced to suggest fraud or insolvency would result from denial of the instant motion, Petitioner's position is that such a finding is unnecessary. Pet. Memo in Reply, ECF No. 73 at 5 ("appointment of a Receiver. . . is, in fact, entirely a matter of judicial discretion")(internal quotations omitted). Petitioner cites
While there is an absence of evidence regarding the Property's value and expected sale price, the Ad, posted by a reputable real-estate brokerage, suggests that a private sale would result in satisfaction of the judgment, with excess proceeds available for distribution to Respondent. A sale of the property that both satisfies the Final Judgment and allows for excess proceeds to be distributed is preferable to one that does not.
This is especially true because the cost of a receiver would not materially exceed a sheriff's "poundage fee."
Respondent's remaining objection to appointment of a receiver is that Petitioner's request is "procedurally defective" for failure to include a receiver's oath, failure to post an undertaking, and a commitment to keeping written records concerning the receivership. Resp. Memo. in Opp., ECF No. 72, at 12. In view of Petitioner's revised Proposed Order, which addresses each of these concerns, Respondent's objections are without merit.
The Court hereby appoints Stuart N. Siegel of Engel & Volkers New York Real Estate LLC to serve as receiver to administer, collect, and sell the Property. The receiver's duties and authority are established by the concurrent order.
Based upon the conclusions set forth above, the motion for appointment of a receiver to administer, collect, and sell the Property is granted. The receiver shall be Stuart N. Siegel, whose duties and authority are established by the concurrent order.
It is so ordered.