1240 EL GRANT HIGHWAY LLC v. Joseph A. Alexander, et al., Defendants. (2025)

Order, Supreme Court, Bronx County (Fidel E. Gomez, J.), entered on or about January 29, 2025, which denied plaintiff's motion to appoint a receiver over a property in foreclosure, unanimously reversed, on the law, with costs, and the motion granted.

In this mortgage foreclosure action, the motion court erred in denying the plaintiff mortgagee's motion to appoint a receiver for the mortgaged property on the ground that the mortgagee did not show that the premises is in danger of being irreparably lost or damaged.  Real Property Law § 254(10) requires the appointment of a receiver in the event of any default, so long as the mortgage documents contain language in which the parties agree to the appointment.  There is no requirement “that plaintiff demonstrate more than what is required by Real Property Law § 254(10)” (SKW Hillside Bleecker Lender, LLC v. 145 Bleecker LLC, 217 A.D.3d 536, 537, 189 N.Y.S.3d 518 [1st Dept. 2023]).

In support of its motion to appoint a receiver, plaintiff mortgagee provided sworn proof that the mortgage was in default, thus triggering section 29 of the subject mortgage, which states that the mortgagee “shall be entitled to the appointment of a receiver” in the event of a default.  Inasmuch as there was no showing that the foreclosure action was improperly commenced, Supreme Court exceeded its limited discretion in denying the motion to appoint a receiver under Real Property Law § 254(10) (see Naar v. Litwak & Co., 260 A.D.2d 613, 614, 688 N.Y.S.2d 698 [2d Dept. 1999];  W.I.M. Corp. v. Cipulo, 216 A.D. 46, 49, 214 N.Y.S. 718 [1st Dept. 1926]).