Court File and Parties
COURT FILE NO.: CV-21-00666018-0000 CV-23-00693696-0000 DATE: 20230818 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Lilla Email Runco, Applicant -and- Marcel Lopes Engenheiro, Respondent
BEFORE: Robert Centa J.
COUNSEL: Lucas E. Lung and Marshall Dupuy, for the applicant Peter Neufeld, for the respondent
HEARD: August 4, 2023
Endorsement
1Lilla Runco and Marcel Engenheiro used to be married to each other. In May 1996, they purchased an apartment building in Toronto as joint tenants. They subsequently moved to New York State. Their relationship ended and, in November 2019, they signed a divorce agreement that settled all outstanding issues between them. Their divorce agreement was incorporated into a judgment of the Supreme Court of the State of New York dated November 26, 2019.
2The judgment required that, no later than June 2020, Ms. Runco would receive US$500,000 in exchange for her interest in the apartment building. The parties agreed that Ms. Runco would receive her money either from Mr. Engenheiro or a third-party purchaser and, in either event, she would receive that payment free and clear of any Canadian tax or other liabilities. Mr. Engenheiro would be entitled to receive the balance of the proceeds of sale.
3Three years later, Ms. Runco has still not received her entitlements under the judgment of the New York court. She sought and obtained further orders in New York. She commenced an application in Ontario under the Partition Act, and obtained a detailed order from Sanderson J. that directed the sale of the apartment building. Despite these further orders, the apartment building has not been sold.
4Ms. Runco has returned to this court, again, seeking its assistance.
5First, Ms. Runco brings a motion in her prior application under the Partition Act asking the court to appoint a receiver to sell the apartment building. I find that this is an appropriate case to appoint a receiver. Ms. Runco has been waiting over three years to receive the money she is owed. I find that Mr. Engenheiro is the primary cause of this delay. There is now a pressing need to sell the property because there is a mortgage on the property that comes due on February 1, 2024, and the apartment building’s expenses currently exceed its rental income. The parties are at an impasse with respect to the sale process. There is no trust or confidence between them. There is no reason to believe that they will be able to agree on a listing agent, the calculation of the applicable withholding tax, or the distribution of the proceeds of sale. In all of the circumstances, it is just and appropriate to appoint a receiver to conduct this sale under the supervision of the court.
6Second, Ms. Runco seeks recognition and enforcement of an order of the Supreme Court of the State of New York. I agree that the order should be recognized. I am satisfied that the New York court had jurisdiction to make it. The order is final, conclusive, and Mr. Engenheiro has not taken any steps to appeal or challenge the order. Finally, Mr. Engenheiro has not made out any of the defences to that order.
It is just and convenient to appoint a receiver to sell the apartment building
7A judge may appoint a receiver where it appears to be just or convenient to do so. A party seeking the appointment of a receiver under s. 101 of the Courts of Justice Act may bring a motion to a judge seeking that relief. In this case, Ms. Runco asks me to direct a reference to myself to appoint a receiver pursuant to rules 54.02(2)(b) and 54.03 of the Rules of Civil Procedure.
8For the reasons set out below, I find that it is just and convenient to appoint a receiver to sell the property and to distribute the proceeds of sale as directed by the court. I am satisfied that the benefits to be gained by appointing a receiver outweigh the costs of that appointment. The facts of this case amply demonstrate that the parties are at an impasse and there is no prospect that they will be able to sell this property without further protracted litigation and multiple further court attendances.
9Justice Sanderson well-described the facts underpinning this dispute in paragraphs 2 to 62 of her reasons for decision in Runco v. Engenheiro, 2022 ONSC 1720. I will not repeat all of the facts from her decision. Instead, I will highlight the most important facts that explain my decision to appoint a receiver to sell the apartment building.
Divorce proceedings in New York State
10As noted above, the parties’ divorce agreement was incorporated into a judgment of the Supreme Court of the State of New York dated November 26, 2019. The judgment required that, no later than June 2020, Ms. Runco would receive US$500,000 free-and clear of any Canadian tax or other liabilities in exchange for her interest in the apartment building.
11The divorce agreement provided that Mr. Engenheiro could obtain a transfer of Ms. Runco’s interest in the apartment building within 60 days, failing which a real estate agent would list the property for sale. The divorce agreement provided that if the apartment building was to be sold, the parties would accept the highest unconditional offer over $2.5 million and that Mr. Engenheiro had a right of first refusal, subject to certain conditions.
12Mr. Engenheiro failed to obtain a transfer of Ms. Runco’s interest and Ms. Runco moved for directions in the New York court. Ultimately, the parties agreed on the real estate agent to list the property and received a qualifying offer. Mr. Engenheiro gave notice of his intention to exercise his right of first refusal, but he did not complete the necessary steps within the deadline to do so. The parties received additional qualifying offers, but those offers expired when Mr. Engenheiro did not respond to them in a timely fashion. The sales process failed.
13The parties then brought four motions in writing in the New York court. On September 22, 2020, Blackwood J. issued an order that gave unfettered authority to Ms. Runco to sell the apartment building and held that Mr. Engenheiro could no longer exercise his right of first refusal. In her reasons for decision, Blackwood J. concluded Mr. Engenheiro had not cooperated in the sales process and had placed the parties in an untenable situation. Justice Blackwood allocated responsibility for the failed sales process on Mr. Engenheiro:
The court finds that [Mr. Engenheiro’s] actions have placed the parties in an untenable situation with regards to the sale of the Toronto property. Despite the fact that he was unable to meet the financial requirements needed to exercise his right of first refusal, he has shown an unwillingness to cooperate in the sale of the property through his actions. The pair are divorced, yet the distribution of this marital property continues to be a burden on them. The court cannot allow this process to continue ad infinitum, especially since the stipulation includes very limited and specific time-frames in which to dispose of the property Accordingly, the court has no choice but to grant [Ms. Runco’s] relief and allow her to list the property and negotiate and accept an offer without the need for the defendant's authorization or signature.
14The apartment building was listed for sale and Ms. Runco accepted a qualifying offer of $2.675 million. On October 22, 2020, Mr. Engenheiro commenced (but did not advance) an appeal from Blackwood J.’s order and stated that he would oppose the sale. Mr. Engenheiro’s initiation of the appeal caused the deal to fall apart. This is not the only occasion when Mr. Engenheiro has threatened but not followed through with appeals and challenges to orders.
Proceedings in the Superior Court of Justice
15Ms. Runco brought an application in Ontario for recognition and enforcement of the order of Blackwood J. to sell the property. On March 19, 2021, A.P. Ramsay J. dismissed the application on the basis of Duke v. Andler, [1932] S.C.R. 734, which held that a foreign court had no jurisdiction to adjudicate on the right and title to lands that were not located in that foreign state.
16Ms. Runco then commenced an application under the Partition Act for the partition or sale of the property. On March 21, 2022, Sanderson J. granted that application and ordered a sale process that mirrored the one contained in the divorce agreement. Justice Sanderson found that Ms. Runco had acted generally in accordance with the divorce agreement and did not accept Mr. Engenheiro’s submissions that Ms. Runco had acted in bad faith, oppressively, vexatiously, or maliciously. Justice Sanderson concluded:
The sale or disposition of [Ms. Runco’s] interest in the Property pursuant to the [divorce agreement] should have been completed long ago. In the interim since 2019, the husband has not only enjoyed the net rental revenues from the property (approximately $100,000) [while the wife has not yet received the US$500,000] but also as a result of the delays in the implementation of the Agreement the husband will enjoy the increase in value of the property that will result from the delay.
17I pause here to address Mr. Engenheiro’s request in his written materials that I direct Ms. Runco to obtain an advance ruling from the Canada Revenue Agency to determine the withholding taxes owing and to allow him to buy out Ms. Runco’s interest in the property. I will not do so. Justice Sanderson explicitly stated, “I find that the husband has exhausted his right of first refusal.” Justice Sanderson reached the same conclusion as Blackwood J., who ordered “that [Ms. Runco’s] motion for an order precluding the defendant from further exercising his right of first refusal is granted.” Two different courts have determined that Mr. Engenheiro may not avail himself of the right of first refusal. I consider myself bound by the decision of Sanderson J., which was subsequently affirmed by the Divisional Court in Runco v. Engenheiro, 2022 ONSC 6028 (Div. Ct.).
18Although Sanderson J. explicitly ordered that “the parties shall sign a listing agreement with Francesco Porretta” Mr. Engenheiro refused to sign the listing agreement. In so doing, Mr. Engenheiro breached the order of Sanderson J. Instead of complying with the order of the court, he had his counsel write a letter to Sanderson J. raising a number of concerns about Mr. Porretta.
19Mr. Engenheiro then complained about Mr. Porretta to the Real Estate Council of Ontario, which prompted Mr. Porretta (understandably) to decline to act on the sale of the apartment building. I do not accept Mr. Engenheiro’s submissions that he attempted to comply with the order of Sanderson J.
20On October 24, 2022, the Divisional Court dismissed Mr. Engenheiro’s appeal. Mr. Engenheiro has not paid the Divisional Court’s $20,000 costs order.
21The parties were subsequently unable to agree on terms of a sale process.
Reasons for appointing a receiver
22I find that it is just and convenient, to appoint an equitable receiver to sell the property pursuant to s. 101 of the Courts of Justice Act.
23There are special circumstances justifying the appointment of a receiver. I am satisfied that it will be very difficult, and it may be impossible, for Ms. Runco to obtain her entitlements under the divorce agreement and the order of Sanderson J. through any process other than the appointment of a receiver. I am satisfied that the benefits of appointing a receiver will more than justify the additional cost of a receiver. See Nashaat Aly v. Adel Tohamy, 2013 ONSC 7738, at para. 9; Renard v. Renard, 2019 ONSC 4732 at para. 13; Di Felice v. 1095195 Ontario Limited, 2013 ONSC 4236. This protracted litigation must be brought to an end.
24In Di Felice, Brown J. (as he then was) had ordered members of a family to sell a property. The parties could not agree on the appropriate terms for the listing agreement, which would delay the sale of the property, which would breach the order to sell. In the face of this ongoing bickering, Brown J. appointed a receiver to conduct the sale and explained his reasons as follows:
The parties have breached my January 4, 2013 Order
Although that breach was caused by the volitional conduct of the parties – their incessant bickering – my review of the evidence adduced at last year’s trial, coupled with the evidence filed on this motion, lead me to conclude that in a certain sense the parties cannot help themselves from bickering and disagreeing. By this point of time, such conduct is hard-wired into the dynamics of this family. Based on my review of the evidence and the findings which I made this past January, I see no reasonable prospect that the family members will change their ways and work together co-operatively and reasonably to give Colliers any directions which it might require to market and sell the Properties. As much as they want the sales of the Properties to proceed with dispatch and to fetch the highest prices, the parties seemingly cannot keep themselves from fighting. …
I conclude that in order to ensure that the parties do not frustrate the performance of my January Order, I must appoint a receiver over the Properties who will aid in the execution of the sale order which I made at the start of this year. …
The combination of a Receiver experienced in the sale and marketing of real estate assets, together with an experienced broker such as Colliers, will enable the Properties to be sold in such a way as to reasonably ensure that they fetch the highest prices possible in the market. Such a combination will also reduce the transaction delays which have resulted from the bickering between the parties, and it will allow the routine details of a sales, marketing and bidding process to be handled by experienced professionals…
Although the appointment of a receiver to aid in the execution of my January Order will add some costs to the process, the costs would be proportionate in the circumstances: the parties agree that the Properties are worth in the neighbourhood of $20 million. Against the costs of a receiver one must weigh the costs of further attendances by the parties were I to permit them continued direct participation in the sales and marketing process.
25I find that many of the features that prompted Brown J. to appoint a receiver in Di Felice are also present in this case.
26I find that Mr. Engenheiro has taken deliberate steps to thwart the sales process. The prior decisions of this court and the New York court are very critical of his conduct. In my view, he deliberately breached the order of Sanderson J., which required him to sign a listing agreement with Mr. Poretta. He did not do so. Instead, he complained about Mr. Poretta to Sanderson J. and then filed complaints about Mr. Poretta to his regulator. For over three years, Mr. Engenheiro has undermined a series of court orders in order to prevent Ms. Runco from obtaining the money to which she is clearly entitled. Mr. Engenheiro’s conduct cannot be rewarded or tolerated. I have no confidence that Mr. Engenheiro will now cooperate in good faith with any sales process in which he is permitted to have a role.
27The parties are clearly at an impasse. There is a complete breakdown of trust and confidence between them. They have no ongoing relationship other than as adversaries in court. Their history of disagreements has occupied courts in two jurisdictions since November 2019. I have no doubt that, absent the appointment of an officer of the court to conduct this sale, the parties will be back before this court many more times.
28There are a number of other reasons that support my decision to appoint a receiver.
29First, time is of the essence. Ms. Runco should have been paid out over three years ago. Courts in both New York and Ontario have criticized the delay in Ms. Runco receiving the money she is owed. This delay cannot continue. Moreover, I accept that there is a mortgage on the property that will expire on February 1, 2024. There are a number of impediments to refinancing the property, including Mr. Engenheiro’s limited income, and a reduction in the number of units available to be rented. It is imperative that this property be sold before the mortgagee exercises its remedies when the mortgage comes due.
30Second, it appears that the monthly expenses exceed the income from the rental units. This situation is unsustainable. If it is allowed to continue, the value of the property may be significantly eroded. Ms. Runco no longer wishes to fund any expenses associated with the property. It is not clear that Mr. Engenheiro has the ability to fund the expenses. This untenable situation must be resolved as soon as possible.
31Third, even if the parties were able to cooperate on the sale process, and they cannot, I am satisfied that they will not be able to agree on the distribution of the proceeds of sale. The parties have not been able to agree on the appropriate amount of the withholding tax, the characterization of proceeds attributable to the sale of the land and the building, or the calculation of reimbursable expenses. It is just and convenient for the receiver to take control of the revenue and expenses of the building and the proceeds of sale and to prepare a payout schedule that I will consider and approve.
32Mr. Engenheiro objects to the appointment of the receiver on the basis of the cost. He submits that this case is distinguishable from Di Felice and Aly because the value of the property in this case is much lower than the value of the properties in those cases. He is concerned that the costs of a receivership will be excessive and that the costs will come from his equity in the house. Counsel for Mr. Engenheiro indicated that his client’s concerns were not assuaged by the receiver’s estimated fees of $50,000 to $75,000.
33I have considered the effect of the order appointing the receiver on Mr. Engenheiro. See Royal Bank of Canada v. CFNDRS Inc., 2017 ONSC 7661. The fees to be charged by the receiver will be subject to the supervision of the court. I have no reason to doubt the receiver’s statement that he will conduct the receivership efficiently. As set out above, Mr. Engenheiro’s conduct created the situation that justifies the appointment of the receiver. There is no injustice in requiring him to pay for the receiver.
34I also considered ordering that Ms. Runco have sole authority to list and sell the property and dispensing with any further involvement by Mr. Engenheiro. This would have the obvious benefit of avoiding the expense associated with the receivership. Ultimately, I concluded that such an approach would not be appropriate in these circumstances:
a. Ms. Runco did not prefer this option. She lives in the United States and states that she is not well-positioned to oversee a sale process. In addition, she is concerned that any decisions that she made would be second-guessed by Mr. Engenheiro and lead to further litigation.
b. Mr. Engenheiro did not prefer this option. He expressed concern that Ms. Runco did not have an incentive to maximize the sale value of the property. In response to my question regarding whether appointing Ms. Runco would be preferable to appointing a receiver, counsel for Mr. Engenheiro would not choose between these two options that were unpalatable to his client.
35I do not accept Mr. Engenheiro’s submission that I should not appoint a receiver because the divorce judgment did not contemplate the appointment of a receiver. I disagree. The parties are in this situation because the divorce judgment did not have a mechanism that could compel the sale in case of impasse. The absence of a clause to resolve an impasse, such as a receivership provision, is the cause of this dispute, not a reason for me to allow this situation to continue.
36I also do not accept Mr. Engenheiro’s submission that I should simply amend the order of Sanderson J. to appoint a new real estate agent. Mr. Engenheiro breached the order of Sanderson J. and I do not agree that it would be just or convenient to simply return, over one year later, to that place. The time for that approach has long since passed. I am satisfied that any process that contemplates a role for Mr. Engenheiro is doomed to fail.
37Albert Gelman Inc. has consented to act as the receiver. Mr. Engenheiro raised no objection to this firm acting as the receiver.
38For all of these reasons, I order the appointment of Albert Gelman Inc. as receiver to take possession and exercise control over the property and to any and all proceeds, receipts and disbursements in connection with the property, to sell the property, and to distribute the net proceeds of sale. I will oversee the sale and distribution process through the reference of this matter to me.
The order of Ondrovic J. should be recognized and enforced
39Ms. Runco asks that the court recognize and enforce the judgment of Ondrovic J. of the Supreme Court of the State of New York, County of Westchester, signed January 17, 2023. Judge Ondrovic ordered Mr. Engenheiro to pay to Ms. Runco 9% interest on the US$500,000 that Runco is entitled to receive from the sale of the Property from July 1, 2020 onwards, half the net rental revenues since July 1, 2020, and legal costs. The order states that it is:
ORDERED, ADJUDGED AND DECREED that the Defendant shall pay to the Plaintiff interest on the amount of US$500,000 that the Plaintiff is entitled to receive from the sale of the property known as 883 Avenue Road, Toronto, Ontario, Canada (the "Property") at a rate of 9% per annum for the period commencing July 1, 2020 and ending on the day the US$500,000 is finally paid to the plaintiff and that Plaintiff have execution of said sum. Two money judgements shall issue as to this portion of the granted relief:
A Money Judgment shall issue as to 9% interest on the sum of $500,000 (US) from July 1, 2020 until January 20, 2023, the date of entry of this Judgment in the amount of $114, 904.11. Plaintiff shall have execution thereof;
It is further Ordered that Plaintiff may have a further money judgment for 9% of the $500,000 from the date of entry of this Judgment (January 20, 2023) until the full $500,000 (US) is paid in full; Plaintiff shall have execution thereof;
ORDERED, ADJUDGED AND DECREED that the defendant shall pay to the Plaintiff the sum of $42,344.50 CAD, representing 50% of the net rental revenues of the Property for the period July 1, 2020 through September 30, 2022 and that Plaintiff shall have a Money Judgment in the sum of $42,344.50 (CAD) and that Plaintiff have execution thereof; ($31,508.67 in US Dollars)
ORDERED, ADJUDGED AND DECREED that commencing October 1, 2022, the net rental revenues from the Property of 883 Avenue Road, Toronto, Ontario, Canada shall be divided equally between the Plaintiff and the Defendant;
ORDERED, ADJUDGED AND DECREED that the Defendant shall pay to the Plaintiff costs of this motion in the amount of US$3,500 and that Plaintiff shall have a Money Judgment in the sum of $3,500 (US) and Plaintiff shall have execution of said sum;
40The court is to take a generous and liberal approach to the recognition and enforcement of foreign judgments. See Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69, at para. 27. The court will enforce a foreign judgment where (1) the foreign court took jurisdiction according to Canadian conflict of law rules, (2) the foreign judgment is final and conclusive, and (3) the responding party does not make out any of the applicable defences of fraud, public policy or natural justice. See Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, 118 O.R. (3d) 617, at para. 10. Ms. Runco has made out each of the three elements of this test.
41First, Mr. Engenheiro appeared pro se before Ondrovic J. and, therefore, attorned to the jurisdiction of the foreign court. I find that the foreign court clearly had jurisdiction according to Ontario’s jurisdiction rules. See Amtim, at para. 10.
42Second, I accept the uncontradicted evidence of Thomas M. Campbell, an attorney admitted to practise law in the State of New York. He provided an opinion that the judgment at issue is a final order of the Supreme Court of the State of New York. The judgment has been signed and entered and cannot be rescinded. It could only be set aside or varied as a result of an appeal or as a result of a motion to renew or reargue the motion.
43Mr. Engenheiro stated in his affidavit dated June 8, 2023, that he “is contesting Judge Ondrovic’s Order in New York with a motion to renew” and that “the filing of my materials is imminent.” Despite this sworn intention, Mr. Engenheiro had not filed any material with the New York court as of the August 4, 2023 hearing date before me. His statements were entirely misleading and nothing more than an attempt to obtain a tactical advantage in the litigation and, thereby, to interfere further with Ms. Runco’s ability to obtain a legal remedy.
44Moreover, any such motion to renew is now well out of time. I accept the evidence of Mr. Campbell that Mr. Engenheiro had to commence any such motion within 30 days from the date of service of the judgment with notice of entry (from January 17, 2023). Mr. Campbell affirmed that, as of May 8, 2023, the time limits had lapsed and, as of that date, Mr. Engenheiro had neither appealed the judgment nor moved for leave to reargue or renew the matter. I find that the foreign judgment is final.
45Third, Mr. Engenheiro has not made out any of the defences of fraud, public policy, or natural justice.
46Mr. Engenheiro submits that the foreign judgment is not a monetary judgment. It is not clear to me that he is correct. The New York court described its own order as a money judgment. The preamble to the judgment at issue states that “two money judgments shall issue.” All of the operative terms follow that introduction.
47Nevertheless, assuming that Mr. Engenheiro is correct, the courts of Ontario may enforce non-monetary judgments and award equitable relief. See Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] S.C.R. 612. In considering whether or not to exercise its discretion to enforce such an order, the court will consider the following questions:
a. Are the terms of order clear and specific enough to ensure that the respondents will know what is expected of them?
b. Is the order limited in scope and did the originating court retain the power to issue further order?
c. Is the enforcement the least burdensome remedy for the Canadian justice system?
d. Are any third parties affected by the order?
e. Will the use of judicial resources be consistent with what would be allowed for domestic litigants?
See Pro Swing, at para. 30; Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 28 to 30; North Field Technology Ltd v. Project Investors Inc., 2022 ONSC 5731 at para. 21.
48Mr. Engenheiro submits that I should not enforce the order of Ondrovic J. because it is not clear. His affidavit states:
Since successfully bringing an application for partition and sale, Runco has now secured an order from Judge Ondrovic in New York that orders me to pay to her 50% of an indeterminate amount of funds titled "net rental revenues" up until an undetermined point in time. I do not know what the court defines as "net rental revenues", and I believe that Judge Ondrovic's Order should not be enforced or recognized as it is not clear how much I am required to pay Runco per that Order.
49I disagree with Mr. Engenheiro’s submission. The parties have both used phrase “net rental revenues” throughout the litigation. This appears to be the first time that Mr. Engenheiro has been puzzled by the meaning of the phrase.
50First, the divorce agreement itself contemplates the calculation of net rental revenues. Paragraph 9 of the divorce agreement reads as follows:
Until payment to Wife of the $500,000 contemplated hereunder is made, the parties [ sic ] current arrangement regarding the rental income generated by this property shall continue. Specifically, per the Order of Judge Walsh dated October 11, 2018 and the schedule included therewith, a copy of which is attached hereto as "Schedule A", the status quo regarding the collection and distribution of the Toronto rental income shall be maintained, specifically but not limited to Ms. Mollame continuing to collect the rent and pay the withholding tax and the bills necessary to maintain the property, as said bills are defined in the October 11, 2018 Order of Judge Walsh attached hereto as "Schedule A", with the Husband receiving any and all sums remaining after the payment of same.
51The order of Walsh J. is even clearer. Exhibit 1 to that order is titled “Monthly Accounting of Toronto Property.” It lists the gross rents for each of the five units that then existed. The gross monthly rents totalled $11,249. Exhibit 1 then lists the “Monthly Expenses” for the property, which include expenses for gas, electricity, water, cleaning, insurance, gardening, mortgage payments, property taxes, something described as Canadian tax, and interest servicing on certain lines of credit. The monthly expenses total $5,134 per month. Exhibit 1 concludes as follows:
NET PER MONTH: $6,115 Canadian Dollars
EQUALS: $4,597.74 in US dollars
From these NET proceeds Marcel pays for regular maintenance WHICH HAS AMOUNTED TO $2,910 Canadian $ in last 2 months per attached Invoices
52Second, on October 26, 2020, Mr. Engenheiro wrote to Ondrovic J. to request an extension of time to file materials. Mr. Engenheiro stated that he could not afford a lawyer and explained that “My main source of income continues to be the net rental income of approx. USD $34,000….” It seems difficult to fault Ondrovic J. for using the same language that Mr. Engenheiro himself used.
53Third, Sanderson J. had no difficulty understanding the meaning of the phrase “net rental income,” which she used in her reasons for decision:
On the hardship issue, there is a provision in the Agreement permitting the husband to receive the net rental income from the Property until it has been transferred or disposed of.
The sale or disposition of the wife's interest in the Property pursuant to the Agreement should have been completed long ago. In the interim since 2019, the husband has not only enjoyed the net rental revenues from the property (approximately $100,000) [while the wife has not yet received the US$500,000] but also as a result of the delays in the implementation of the Agreement the husband will enjoy the increase in value of the property that will result from the delay.
54I conclude that the meaning of net rental revenues is sufficiently clear for the enforcement of Ondrovic J.’s order. It is a phrase used by the parties and the courts at various points in the proceeding. It is readily understandable. Whether or not a particular expense is to be permitted as a deduction from the gross monthly rents is simply an application of the facts to the language of the order. Even if the parties were to disagree on the inclusion or exclusion of a particular expense, such a hypothetical disagreement is not sufficient to prevent enforcement of Ondrovic J.’s order.
55The receiver that I have appointed receiver will be well positioned to determine the appropriateness of any deductions to be made in the calculation of the net income, subject to court approval.
56Mr. Engenheiro did not seriously contest any of the other Pro Swing factors. I find that there are no reasons not to enforce Ondrovic J.’s order.
Conclusion
57For the reasons given, I direct a reference to myself and appoint Albert Gelman Inc. as receiver of the property. The draft order presented by Ms. Runco looks generally acceptable to me. The parties and the receiver are to schedule a case conference with my judicial assistant to be held within seven days of the release of these reasons to discuss and finalize the draft order.
58I also recognize and enforce the judgment of the Supreme Court of the State of New York, County of Westchester, signed January 17, 2023.
59If the parties are not able to resolve costs of this action, Ms. Runco may email her costs submission of no more than three double-spaced pages to my judicial assistant on or before August 25, 2023. Mr. Engenheiro may deliver his responding submission of no more than three double-spaced pages on or before September 1, 2023. No reply submissions are to be delivered without leave.
Robert Centa J.
Date: August 18, 2023