Opinion
No. 9273/11.
02-24-2014
George W. CLARKE and Yongwei Guo, as Administrators of the Estate of Qian Wu, deceased and Yongwei Guo, individually, as Surviving Spouse, Plaintiffs, v. The CITY OF NEW YORK and the Police Department of the City of New York a/k/a the New York City Police Department, Defendants.
George W. Clarke, Esq., Dai & Associates, PC, for Plaintiff. Yongwei Guo, Michael A. Cardozo, Esq., Corporation Counsel, for Defendant.
George W. Clarke, Esq., Dai & Associates, PC, for Plaintiff.
Yongwei Guo, Michael A. Cardozo, Esq., Corporation Counsel, for Defendant.
Opinion
PHYLLIS ORLIKOFF FLUG, J.
The following papers numbered 1 to 4 read on this motion
| Notice of Motion | 1–2 |
| Affirmation in Support | 3 |
| Affirmation in Opposition | 4 |
Nicholas Ye, moves inter alia to intervene as plaintiff in this action.
This is an action to recover damages for personal injuries and the wrongful death of decedent Qian Wu, movant's mother, who was murdered on January 26, 2010 at her residence, located at 1135–32 40th Road, in the County of Queens, City and State of New York.
Plaintiff Yongwei Guo was the decedent's spouse at the time of her death and was made administrator of the estate along with George W. Clarke, who is not related to the decedent and was appinted administrator by the Court.
Movant alleges that Clarke is not an independent party because Clarke and Guo are represented by the same law firm. Movant claims that he has disputes with plaintiffs regrading the distribution of the subject estate.
As an initial matter, the Court lacks the authority to grant that portion of movant's motion seeking leave to serve a late notice of claim because said application was not made until after the expiration of the applicable statutes of limitations for the underlying claims (See Robinson v. Board of Educ. of City Sch. Dist. of City of New York, 104 AD3d 666 [2d Dept.2013] ; Decoteau v. City of New York, 97 AD3d 527 [2d Dept.2012] ).
Pursuant to CPLR § 1012[a][2], a person may intervene in an action as a matter of right where the representation of the person's interest is or may be inadequate and the person is or may be bound by the judgment.
It is undisputed that movant Ye would be bound by any judgment in this action. However, movant fails to demonstrate that his interests and the interests of the current plaintiffs are so divergent as to render the administrators' representation of movant's interests to be inadequate (See Vantage Petroleum v. Board of Assessment Review, 91 A.D.2d 1037, 1039 [2d Dept.1983] ).
As all damages recovered in a wrongful death action are for the benefit of the decedent's estate and distributees (see Heslin v. County of Greene, 14 NY3d 67, 75–77 [2010] ), movant's interests in the case are identical to the current plaintiffs. The only potential area of dispute raised by movant involves the administrators' distribution of the estate's assets and such issues would not arise until post-post judgment, if at all.
Nevertheless, pursuant to CPLR § 1013, the court may grant timely motion to intervene as a matter of discretion where the person seeking to intervene has claims involving common questions of law and fact as the main action.
Regardless of whether intervention is sought as a matter of right pursuant to CPLR § 1012 or as a matter of discretion pursuant to CPLR § 1013, intervention should be permitted where the intervener has a real and substantial interest in outcome of the proceedings (See Berkowski v. Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840, 843 [2d Dept.2009] ; Perl v. Aspromonte Realty Corp., 143 A.D.2d 824, 825 [2d Dept.1988] ).
As the decedent's surviving son and distributee of her estate, movant has a real and substantial interest in the outcome of the proceedings (See Heslin, supra, at 75–77). Moreover, in light of the fact that the action is in its preliminary stages, a request for judicial intervention having first been filed on November 15, 2013, intervention will not cause any undue delay of the proceedings.
Accordingly, the motion is granted to the extent that movant is entitled to intervene as plaintiff in this action pursuant to CPLR § 1013, and is denied in all other respects.