WF Shirley, L. L. C. v. William Floyd Plaza Associates , 704 N.Y.S.2d 108 ( 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of the temporary receiver for leave to withdraw his cross appeal is granted, and the cross appeal is dismissed as withdrawn, without costs or disbursements; and it is further,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 AD2d 291; see also, Eastrich Multiple Investor Fund v Citiwide Dev. Assocs., 218 AD2d 43; Coronet Capital Co. v Spodek, 202 AD2d 20; People v Abbott Manor Nursing Home, 112 AD2d 40). We do not agree with the approach advocated in Sunrise Fed. Sav. & Loan Assn. v West Park Ave. Corp. (47 Misc 2d 940). 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). For these reasons, the matter is remitted to the Supreme Court, Suffolk County, for a recalculation of the commission due the temporary receiver.

The plaintiffs remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Joy, Gold-stein and Luciano, JJ., concur.