
    City of New York, Respondent, v L.J.W.P. Realty Co., L. L. C., Appellant, et al., Defendants. Francis T. Murphy, Respondent.
    (Appeal No. 3.)
    [702 NYS2d 482]
   —Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Following the sale of the property at issue in this appeal by a receiver in March 1999 for $8.2 million, Supreme Court properly directed the payment of $175,478.01 in counsel fees and $246,000 in broker’s fees. We conclude, however, that the receiver’s commission of $350,000 is excessive. “The authority for the receiver’s commission, CPLR 8004 (a), provides that the 5% is a maximum allowable fee but the receiver must earn his fee and it is his burden to demonstrate that he has in fact earned it” (De Nunez v Bartels, 264 AD2d 565, 566). “If services of the receiver are performed by others, the receiver’s commission should be reduced” (Independent Props. Co. v Mast Prop. Investors, 148 AD2d 849, 850). The receiver was appointed to sell the property, but retained a broker to effect that sale and counsel to perform necessary legal services. The records of the receiver do not support a commission of 4.2%. Thus, we modify the order by reducing the receiver’s commission to $200,000. (Appeal from Order of Supreme Court, New York County, Freedman, J. — Receiver’s Commission.) Present — Pine, J. P., Wisner, Hurlbutt, Balio and Lawton, JJ.  