Opinion
2017–11404 Index No. 6840/13
07-31-2019
US BANK NA, etc., Respondent, v. Reginald E. OSUJI, et al., Defendants; Lawrence Emedoh, et al., Nonparty-Appellants.
C. Steve Okenwa, P.C., New York, NY, for nonparty-appellants. Woods Oviatt Gilman LLP, Rochester, N.Y. (Victoria E. Munian of counsel), for respondent.
C. Steve Okenwa, P.C., New York, NY, for nonparty-appellants.
Woods Oviatt Gilman LLP, Rochester, N.Y. (Victoria E. Munian of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to foreclose a mortgage, nonparties Lawrence Emedoh and Comfort Emedoh appeal from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered September 18, 2017. The order, insofar as appealed from, denied those branches of those nonparties' motion which were for leave to intervene in the action and, thereupon, to vacate a judgment of foreclosure and sale of the same court dated October 29, 2014, and pursuant to CPLR 3211(a)(10) to dismiss the complaint for failure to join them as necessary parties.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In April 2013, the plaintiff commenced this action against the defendant Reginald E. Osuji, among others, to foreclose a mortgage on residential property in Jamaica (hereinafter the premises). Thereafter, the Supreme Court issued a judgment of foreclosure and sale dated October 29, 2014. By order to show cause dated June 27, 2017, nonparties Lawrence Emedoh and his wife, Comfort Emedoh (hereinafter together the appellants), occupants who claimed a right in the property, moved, inter alia, for leave to intervene in the action and, thereupon, to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(10) to dismiss the complaint for failure to join them as necessary parties. In an order entered September 18, 2017, the court, inter alia, denied those branches of the motion.
Under CPLR 1012(a)(3), any person shall be permitted to intervene in an action "when the action involves the disposition or distribution of ... property and the person may be affected adversely by the judgment." CPLR 1012 requires a "timely motion" ( CPLR 1012[a] ; see Pescatore v. Nicole Brittany, Ltd., 153 A.D.3d 1437, 1437, 60 N.Y.S.3d 695 ; Castle Peak 2012–1 Loan Trust v. Sattar, 140 A.D.3d 1107, 1108, 35 N.Y.S.3d 368 ).
Here, the appellants' motion was untimely since it was made more than 4 years after a notice of pendency was filed and the action was commenced on April 9, 2013, more than 2½ years after the judgment of foreclosure and sale was issued on October 29, 2014, and more than 19 months after a notice of sale, advising that the premises were to be sold at public auction, was served on the occupants of the premises, among others, on November 4, 2015 (see Castle Peak 2012–1 Loan Trust v. Sattar, 140 A.D.3d at 1108, 35 N.Y.S.3d 368 ; Wells Fargo Bank, N.A. v. Mazzara, 124 A.D.3d 875, 876, 2 N.Y.S.3d 553 ; U.S. Bank N.A. v. Bisono, 98 A.D.3d 608, 609, 949 N.Y.S.2d 652 ; JP Morgan Chase Bank, N.A. v. Edelson, 90 A.D.3d 996, 997, 934 N.Y.S.2d 847 ; T & V Constr. Corp. v. Pratti, 72 A.D.3d 1065, 1066, 898 N.Y.S.2d 875 ).
Accordingly, we agree with the Supreme Court's determination denying the subject branches of the appellants' motion.
In view of our determination, we need not reach the parties' remaining contentions.
MASTRO, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.