Section 8004 of New York's Civil Practice Law and Rules. Section 8004 provides:
(a) Generally. A receiver, except where otherwise prescribed by statute, is entitled to such commissions, not exceeding five per cent upon the sums received and disbursed by him, as the court by which he is appointed allows, but if in any case the commissions, so computed, do not amount to one hundred dollars, the court, may allow the receiver such a sum, not exceeding one hundred dollars, as shall be commensurate with the services rendered.
(b) Allowance where funds depleted. If, at the termination of a receivership, there are no funds in the hands of the receiver, the court, upon application of the receiver, may fix the compensation of the receiver and the fees of his attorney, in accordance with the respective services rendered. . . .
N.Y. Civ. Prac. L. & R. § 8004 (McKinney 1981 & Supp. 1992).
During the course of his receivership, Mr. Parisi received and disbursed $ 1490.00. Five percent of $ 1490.00 equals $ 74.50. The Court finds that the award of $ 74.50, or even the statutory maximum of $ 100.00 under Section 8004(a), would be manifestly unfair. Thus, this Court, in the exercise of its inherent powers under Section 8004(a) and (b) awards Mr. Parisi the sum of $ 500.00, as a quantum meruit award for the reasonable value of the services rendered. See Klemczyk v. Levin, 144 Misc. 2d 124, 543 N.Y.S.2d 609 (Erie Co. Ct. 1989) (awarding receiver in excess of statutory amount as a quantum meruit award for services rendered); but see Hirsch v. Peekskill Ranch, Inc. et al., 100 A.D.2d 863, 474 N.Y.S.2d 117 (2d Dep't 1984) (statutory commission is the maximum amount payable to a receiver).
With respect to the Five Hundred Dollars ($ 500) requested as payment for the legal services provided by Anthony S. Colavita, Esq. as the attorney for the Temporary Receiver, the Court denies the request, solely for want of authority on the part of the Temporary Receiver to employ Mr. Colavita. Section 6401(b) of New York's Civil Practice Law and Rules is quite plain. "A receiver shall have no power to employ counsel unless expressly authorized by order of the court." § 6401(b). While the affidavit submitted by Mr. Colavita states that he and the receiver, who is also an attorney, prepared a Motion to Amend the Order Appointing the Temporary Receiver to permit the employment of counsel, there is no indication that such a Motion was filed or that any court order issued thereon. In the absence of unusual or exigent circumstances, there is no basis upon which this Court can ratify the unauthorized engagement of counsel, after the fact, even if it would be inclined to do so. Emigrant Savings Bank v. Elan Management Corp., et al., 114 Misc. 2d 472, 453 N.Y.S.2d 977 (N.Y. Sup. Ct. 1982).
Finally, by notice dated January 27, 1993, defendant Bauer Optical Export Corp. has moved to reargue plaintiff's motion to attorn to the receiver which was orally granted by this Court on November 17, 1992. See Fed. R. Civ. Proc. Rule 60(b); November 17, 1992 Tr. at 15-18, 20; Doc. No. 28, at 3. Upon reviewing the submission of Bauer Optical and reconsidering the prior proceedings herein, this Court declines to grant defendant's motion to reargue the motion to attorn to the receiver. As a matter of law, defendant Bauer Optical is obligated to pay over to Michael Santangelo, the Temporary Receiver, all rent on the space it occupies in the Mortgaged premises at the rental rate fixed in its Lease, without any offset whatsoever.
All counsel appearing in this action are directed to complete discovery within sixty (60) days of the issuance of this Memorandum & Order and bring this litigation to a state of trial readiness. Counsel are further directed to appear at Courtroom 31, United States Courthouse, 101 East Post Road, White Plains, New York on April 20, 1993 at 9:00 AM, for the purpose of a status report conference and to set a trial date.
Dated: February 3, 1993
White Plains, New York
Charles L. Brieant