Federal Deposit Ins. Corp. v. Briarwood Holding Corp., 54 A.D.2d 750, 387 N.Y.S.2d 712 (N.Y.A.D. 2 Dept., Oct 25, 1976)

Supreme Court, Appellate Division, Second Department, New York.
FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff,v.BRIARWOOD HOLDING CORP. et al., Defendants,andEva Chess, Respondent.Morton M. Haves, Receiver-Appellant.

Oct. 25, 1976.

 Receiver appointed in mortgage foreclosure action appealed from an order of the Supreme Court, Nassau County, denying motion to compel assignee of second mortgagee to account for and turn over all security deposits and rents collected from date second mortgagee entered into possession until date she received notification of receiver's appointment.  The Supreme Court, Appellate Division, held that receiver had no right to net sums received prior to receiver's appointment by second mortgagee who entered into possession pursuant to provision therefor in second mortgage; however, second mortgagee had to account for sums received during nine-day period subsequent thereto and up to date of second mortgagee's receipt of notification of receiver's appointment.
 Affirmed as modified.

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Receiver appointed in mortgage foreclosure action had no right to net sums received prior to receiver's appointment by second mortgagee who entered into possession pursuant to provision therefor in second mortgage;  however, second mortgagee had to account for sums received during nine-day period subsequent thereto and up to date of second mortgagee's receipt of notification of receiver's appointment. **712 Kenneth Kirschenbaum, New York City, for receiver-appellant.
 Norman Sternlieb, Brooklyn, for respondent.

 *751 Before HOPKINS, Acting P.J., and COHALAN, DAMIANI, SHAPIRO and TITONE, JJ.

 MEMORANDUM BY THE COURT.
 *750 In a mortgage foreclosure action, the receiver appointed therein appeals from so much of an order of the Supreme Court, Nassau County, dated June 20, 1975, as denied the branch of his motion which *751 sought to compel respondent, the assignee of the second mortgagee, to account for and to turn over all security deposits and rents collected from October 1, 1974 (the date she entered into possession) until April 26, 1975 (the date she received notification of the appointment of the receiver).
 Order modified, on the law, by deleting the date April 26, 1975 from the second decretal paragraph thereof, and substituting **713 therefor the date April 17, 1975.  As so modified, order affirmed insofar as appealed from, without costs or disbursements.  The findings of fact are affirmed.
 There were simultaneous defaults on the first and second mortgages in September, 1974.  The first mortgagee did not take any steps in connection with the default until April 17, 1975, at which time it instituted the instant foreclosure action and caused the appointment of a receiver.  In the interim, the respondent entered into possession on October 1, 1974, pursuant to provision therefor in the second mortgage; she proceeded to collect rents and to make certain payments in connection with maintenance.
 The receiver has no right to the net sums received by the second mortgagee prior to his appointment (see Ranney v. Peyser, 83 N.Y. 1; Ann. 95 A.L.R. 1051; 20 N.Y.Jur., Equity, s 93).  However, the second mortgagee must account for the sums received by her during the nine-day period subsequent thereto and up to the date of her receipt of notification of the receiver's appointment.  The lapse of such period does not constitute laches in the absence of proof of rendition of unusual services by the mortgagee in possession during that time.
387 N.Y.S.2d 712, 54 A.D.2d 750
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