56 A.D.2d 776 | N.Y. App. Div. | 1977
Order, Supreme Court, New York County, entered June 30, 1976, denying plaintiffs’ motion to compel a court-approved receiver to bring an action in the name of the corporation, reversed, on the law, without costs and disbursements, and the motion granted to the extent of vacating the order of said court entered March 11, 1975 and the matter remanded to Special Term for further proceedings. Appeal from the order of said court, entered July 2, 1976, denying reargument unanimously dismissed as nonappealable, without costs and disbursements. Scrutiny of the record discloses the following: By order entered June 18, 1970, a temporary receiver for Daro Industries, Inc. (the corporate plaintiff herein) was appointed at the request of Daniel Liker (also a plaintiff herein). The instant lawsuit was commenced by Daro Industries, Inc., and Daniel Liker some three years after the appointment of the temporary receiver. Special Term dismissed the complaint by order entered March 11, 1975, solely on the basis that the corporate plaintiff is in receivership and the "proper procedure in asserting a claim in behalf of the Corporation * * * would be for the individual plaintiff to move to compel the receiver to bring an action in the name of the corporate plaintiff.” It is important to note that the court determined only the threshold issue of the corporate plaintiff’s legal capacity to sue (CPLR 3211, subd [a], par 3), observing that "The remaining defenses raised on this motion need not be considered at this time” and "Any further motions shall be referred to * * * Special Term, Part I”. It is well recognized that "A temporary receiver acquires no title to the property of the corporation, but only the right of possession as the officer of the court. Therefore, the title to a cause of action on behalf of the corporation remains in the corporation after the appointment of a temporary receiver and it has capacity to institute an action in its own name” (20 Carmody-Wait 2d, NY