BOARD OF MANAGERS OF PRINTING HOUSE CONDOMINIUM v. Barnet Liberman et al., Defendants. (2023)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered June 6, 2022, which granted plaintiff Board of Managers of Printing House Condominium's (the Board) motion to appoint a temporary receiver to, among other things, collect reasonable rent for the subject units and apply that rent to common charges, unanimously affirmed, with costs.

In this action to foreclose on liens against commercial condominium units for unpaid common charges, Supreme Court providently exercised its discretion in granting the Board's motion, as the appointment of a temporary receiver was authorized by Real Property Law § 339–aa and the condominium bylaws (e.g. Capital One, N.A. v. Banfill, 177 A.D.3d 415, 415, 111 N.Y.S.3d 594 [1st Dept. 2019]).  In opposing the Board's motion, defendants Mountbatten Equities, L.P., Hudson Leroy LLC, and 421 Commercial Fitness (Owners) articulated no persuasive basis to deny the requested relief.  That some of the Board's liens are inferior to first mortgages does not preclude appointment of a temporary receiver or application of rent to common charges under these circumstances (see Ezriel Equities Assoc. v. 157 E. 72nd St. Assoc., 225 A.D.2d 326, 327, 638 N.Y.S.2d 470 [1st Dept. 1996], lv dismissed 88 N.Y.2d 1064, 651 N.Y.S.2d 407, 674 N.E.2d 337 [1996];  cf.  Cadlerock Joint Venture v Board of Mgrs. of Parkchester S. Condominium, Inc., 289 A.D.2d 1, 733 N.Y.S.2d 413 [1st Dept. 2001]).  Owners submitted no support for their position that the amount of unpaid common charges was in issue (see e.g. Banfill, 177 A.D.3d at 415–416, 111 N.Y.S.3d 594).

Owners’ attempts to distinguish Ezriel Equities and Banfill are largely premised on facts that were not before Supreme Court when it decided the Board's motion or are otherwise unpersuasive.  We decline to consider Owners’ new argument, that some of the unpaid common charges are subject to arbitration, as that argument is best addressed, in the first instance, by Supreme Court on Mountbatten Equities’ pending motion to compel arbitration.