Beatty v. Williams

Order unanimously affirmed without costs. Memorandum: Supreme Court properly exercised its discretion in granting plaintiff’s motion for the appointment of a temporary receiver of the real property at 11-13 East Utica Street in Buffalo. Plaintiff met his burden of demonstrating that he has an "apparent interest” in the property (CPLR 6401 [a]; see, Nelson v Nelson, 99 AD2d 917) and establishing by clear and convincing evidence that there was a likelihood "of irreparable loss or damage” if a receiver were not appointed (Groh v Halloran, 86 AD2d 30, 33; see, Lefebvre v Shea, 212 AD2d 884, 885; Somerville House Mgt. v American Tel. Syndication Co., 100 AD2d 821, 822; cf., Serdaroglu v Serdaroglu, 209 AD2d 606, 608). In light of the issues of fact regarding the ownership interests of the parties, the court properly denied that part of the cross motion of Lamont Williams (defendant) seeking summary judgment. The court erred, however, in denying that part of defendant’s cross motion for an order requiring plaintiff, a non-resident, to post security for costs (see, CPLR 8501 [a]; Siegel, NY Prac § 414, at 630 [2d ed]). We reject as excessive the amount of security proposed by defendant, and fix the amount at $5,000 (see, CPLR 8503; Howell v Rothberg, 197 AD2d 815). The other issues raised by defendant in his notice of appeal are deemed abandoned (see, Ciesinski v Town of Aurora, 202 AD2d 984). (Appeal from Order of Supreme Court, Erie County, Glownia, J. — Appointment of Receiver.) Present — Pine, J. P., Wesley, Callahan, Doerr and Boehm, JJ.