My Brother's Keeper; Court Grants Motion for Temporary Receiver for Properties Co-Owned by Deceased's Brother and Widow: Clark v Clark
In a December 20, 2011 decision by Justice Warshawsky, the court granted in part the plaintiff’s motion, pursuant to CPLR 6401 for the appointment of a temporary receiver. The plaintiff, Winifred Clark, the widow of William Clark, brought the action against William’s brother, James Clark. In the instant motion, Winifred moved for the appointment of a temporary receiver for 32 properties, 28 of which she, through William, and James owned as tenants in common; as to the others, the ownership was disputed. Winifred’s brought the motion in an attempt to protect her rights to 50% of the net rental income from the properties, which James managed. The appointment of a temporary receiver is an extreme remedy; the statute requires the movant to prove, by clear and convincing evidence that “there is a danger that the property will be removed from the state, or lost, materially injured or destroyed.” The court explained that while it is “loathe to appoint a receiver in most cases,” and notwithstanding the significant cost required to do so, it found that all of James’ actions taken together, including: defaulting on tax payments; under reporting income; maintaining double books; failing to pay Winifred her fair share of income; and misuse of joint income for personal needs, provided clear and convincing evidence that the CPLR 6401 standard was met. Therefore, the court granted the motion with respect to the 28 properties for which Winifred and James’ co-ownership was undisputed.
Clark v Clark, Sup Ct, Nassau County, December 20, 2011, Warshawsky, J., Index No. 5514/2008
Affiant's Health Issues at the Time of Original Dismissal Motion Justify Submission of Evidence of Lack of Standing on Later Renewal Motion: Koenig v Koenig
In a September 17, 2010, decision by Justice Driscoll in connection with a post-dissolution derivative action on behalf of a microscope-servicing company, and on defendant’s motion for leave to renew his motion to dismiss for lack of standing based on an affidavit from the company’s receiver affirming that plaintiff failed to make a demand on the receiver, the court granted the motion and dismissed the complaint. The court found that health issues experienced by the receiver at the time the underlying motion to dismiss was made “constitute[d] a reasonable justification for the failure to submit his affidavit on the original motion.” Based on the receiver’s affidavit, the court concluded that the plaintiff lacked standing to bring a derivative action because he failed first to make a demand on the receiver and that such a demand would not have been futile because the receiver would have, among other things, provided an analysis of the plaintiff’s claims and attempted to mediate the dispute in order to preserve corporate assets.
Koenig v Koenig, Sup Ct, Nassau County, September 17, 2010, Driscoll, J., Index No. 021401/09
*For a more detailed analysis of this decision and its impact, see our colleague Peter A. Mahler’s post at New York Business Divorce.
