WF SHIRLEY LLC v. Neil J. Abelson, nonparty respondent-appellant. (2000)

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated August 13, 1998, as granted that branch of the motion of the temporary receiver which was for a commission and fixed the commission of the temporary receiver at $137,636.08, and denied its cross motion, inter alia, to compel the temporary receiver to remit the excess income to it, and the temporary receiver cross-appeals from stated portions of the same order.

ORDERED that the application of the temporary receiver for leave to withdraw his cross appeal is granted, and the cross appeal is dismissed as withdrawn, without costs or disbursements;  and it is further,

ORDERED that the order is modified, by deleting the provision thereof awarding the temporary receiver a commission in the sum of $137,636.08;  as so modified, the order is affirmed insofar as appealed from by the plaintiff, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a recalculation of the commission in accordance herewith.

 We agree with the plaintiff that the commission of the temporary receiver should be calculated as 5% of the gross receipts (see, Coronet Capital Co. v. Spodek, 265 A.D.2d 292, 696 N.Y.S.2d 191;  see also, Eastrich Multiple Investor Fund v. Citiwide Dev. Assocs., 218 A.D.2d 43, 637 N.Y.S.2d 712;  Coronet Capital Co. v. Spodek, 202 A.D.2d 20, 615 N.Y.S.2d 351;  People v. Abbott Manor Nursing Home, 112 A.D.2d 40, 490 N.Y.S.2d 411).   We do not agree with the approach advocated in Sunrise Fed. Sav. & Loan Assn. v. West Park Ave. Corp., 47 Misc.2d 940, 263 N.Y.S.2d 529.   The Supreme Court was therefore in error in calculating the commission based on the aggregate amount of both receipts and disbursements.   The Supreme Court also erred by including money which was received for security deposits in the calculation of “sums received” (see, De Santis v. White Rose Assocs., 152 Misc.2d 567, 578 N.Y.S.2d 363).   For these reasons, the matter is remitted to the Supreme Court, Suffolk County, for a recalculation of the commission due the temporary receiver.

The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.