CAPITAL ONE, N.A. v. BANFILL, 177 A.D.3d 415 (2019)
Court: Supreme Court of New York
Number: innyco20191107332
Visitors: 7
Filed: Nov. 07, 2019
Latest Update: Nov. 07, 2019
Summary: Contrary to defendant Banfill's contention, the Board is not precluded from seeking the appointment of a temporary receiver before answering the complaint ( see CPLR 6401). The motion court's appointment of a temporary receiver in this mortgage foreclosure action was a provident exercise of discretion. Both Real Property Law 339-aa and the condominium bylaws provide for the appointment of a receiver in a lien foreclosure action to collect the reasonable rent for the use and occupancy of a un
Summary: Contrary to defendant Banfill's contention, the Board is not precluded from seeking the appointment of a temporary receiver before answering the complaint ( see CPLR 6401). The motion court's appointment of a temporary receiver in this mortgage foreclosure action was a provident exercise of discretion. Both Real Property Law 339-aa and the condominium bylaws provide for the appointment of a receiver in a lien foreclosure action to collect the reasonable rent for the use and occupancy of a uni..
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Contrary to defendant Banfill's contention, the Board is not precluded from seeking the appointment of a temporary receiver before answering the complaint (see CPLR 6401).
The motion court's appointment of a temporary receiver in this mortgage foreclosure action was a provident exercise of discretion. Both Real Property Law § 339-aa and the condominium bylaws provide for the appointment of a receiver in a lien foreclosure action to collect the reasonable rent for the use and occupancy of a unit by the defaulting unit owner (see Heywood Condominium v Wozencraft, 148 A.D.3d 38, 49 [1st Dept 2017], appeal dismissed 29 N.Y.3d 986 [2017]; compare Fairbanks Capital Corp. v Nagel, 289 A.D.2d 99, 101 [1st Dept 2001] [affirming grant of condominium board's motion for appointment of temporary receiver in mortgage foreclosure action brought by lender against unit owner and board]).
Nor did the Board fail to establish its entitlement to this drastic remedy (see Matter of Armienti & Brooks, 309 A.D.2d 659, 661 [1st Dept 2003]). It is undisputed that Banfill has not paid common charges since 2008. The Board submitted evidence establishing that his failure to pay the common charges caused a shortfall in the condominium's monthly income, creating a burden shouldered by the other unit owners.
Source: Leagle
