CAPITAL ONE ING FSB v. 520 (2019)

Order, Supreme Court, New York County (Judith N. McMahon, J.), entered December 18, 2018, which granted defendant Board of Managers of the 520 West 110th Street Condominium's motion for the appointment of a temporary receiver to collect reasonable rent from defendant Andrew Banfill for his use and occupancy of his unit during the pendency of this foreclosure action, unanimously affirmed, with costs.

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, 48 N.Y.S.3d 304 [1st Dept. 2017], appeal dismissed 29 N.Y.3d 986, 53 N.Y.S.3d 253, 75 N.E.3d 670 [2017];  compare Fairbanks Capital Corp. v Nagel, 289 A.D.2d 99, 101, 735 N.Y.S.2d 13 [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, 767 N.Y.S.2d 2 [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.