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Natoli v. Elias Milazzo

Appellate Division of the Supreme Court of New York, Second Department
Dec 26, 2006
35 A.D.3d 823 (N.Y. App. Div. 2006)

Opinion

No. 2006-00010.

December 26, 2006.

In an action, inter alia, to enjoin the defendants from operating in or entering the plaintiff Cathedral Church of St. Lucy's, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated October 3, 2005, as (1) denied that branch of their cross motion which was for summary judgment dismissing the complaint, and (2), sua sponte, appointed a receiver to, among other things, oversee the daily operations of the plaintiff Cathedral Church of St. Lucy's.

Stavis Kornfeld, LLP, New York, N.Y. (Oren L. Sibony and Randy Kornfeld of counsel), for appellants.

Wolodymyr M. Starosolsky, New York, N.Y., for respondents.

Before: Florio, J.P., Mastro, Spolzino and Skelos, JJ.


Ordered that on the Court's own motion, the notice of appeal is treated as an application for leave to appeal from so much of the order as, sua sponte, appointed a receiver, and leave to appeal is granted from that portion of the order ( see CPLR 5701 [c]); and it is further,

Ordered that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof appointing a receiver over the plaintiff Cathedral Church of St. Lucy's; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court improvidently exercised its discretion in, sua sponte, appointing a receiver over the plaintiff Cathedral Church of St. Lucy's (hereinafter St. Lucy's), since no party asked for that relief and there was no evidence that St. Lucy's assets were susceptible to waste or that such a drastic remedy was warranted ( see Matter of Armienti Brooks, 309 AD2d 659; Rotary Watches [USA] v Greene, 266 AD2d 527; Ronan v Valley Stream Realty Co., 249 AD2d 288; Matter of Hessert v Brooklyn Home Dialysis Training Ctr., 231 AD2d 719; Matter of Breiterman v Chemical Bank, 181 AD2d 675).

The Supreme Court did not err in denying that branch of the defendants' cross motion which was for summary judgment dismissing the complaint ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324). [See 9 Misc 3d 1116(A), 2005 NY Slip Op 51570(U) (2005).]


Summaries of

Natoli v. Elias Milazzo

Appellate Division of the Supreme Court of New York, Second Department
Dec 26, 2006
35 A.D.3d 823 (N.Y. App. Div. 2006)
Case details for

Natoli v. Elias Milazzo

Case Details

Full title:VINCENT E. NATOLI et al., Respondents, v. Louis ELIAS MILAZZO et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 26, 2006

Citations

35 A.D.3d 823 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 10035
826 N.Y.S.2d 716

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