CITY OF NEW YORK v. Honorable Francis T. Murphy, Respondent. (Appeal No. 3.) (2000)

Supreme Court, Appellate Division, Fourth Department, New York.

CITY OF NEW YORK, Plaintiff-Respondent, v. L.J.W.P. REALTY CO., LLC, Defendant-Appellant, et al., Defendants. Honorable Francis T. Murphy, Respondent. (Appeal No. 3.)

Decided: February 16, 2000

Present: PINE, J.P., WISNER, HURLBUTT, BALIO and LAWTON, JJ.

Saul Rudes, for defendant-appellant. Neil Merkl, New York City, for respondent.

Following the sale of the property at issue in this appeal by a receiver in March 1999 for $8.2 million, Supreme Court properly directed the payment of $175,478.01 in counsel fees and $246,000 in broker's fees. We conclude, however, that the receiver's commission of $350,000 is excessive. “The authority for the receiver's commission, CPLR 8004(a), provides that the 5% is a maximum allowable fee but the receiver must earn his fee and it is his burden to demonstrate that he has in fact earned it” (De Nunez v. Bartels, 264 A.D.2d 565, 566, 695 N.Y.S.2d 31). “If services of the receiver are performed by others, the receiver's commission should be reduced” (Independent Props. Co. v. Mast Prop. Investors, 148 A.D.2d 849, 850, 539 N.Y.S.2d 121). The receiver was appointed to sell the property, but retained a broker to effect that sale and counsel to perform necessary legal services. The records of the receiver do not support a commission of 4.2%. Thus, we modify the order by reducing the receiver's commission to $200,000.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM:

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