Opinion
2017–05107 2017–05108 Index No. 503376/13
03-11-2020
U.S. BANK, NATIONAL ASSOCIATION, etc., Respondent, v. Vladimir TSIMBALISTY, etc., et al., Defendants; Brighton Seven Management Corp., Nonparty- Appellant.
Tsyngauz & Associates, P.C., New York, N.Y. (Yevgeny Tsyngauz, Simon I. Malinowski, and Eleazar Jacobs of counsel), for nonparty-appellant. McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (Richard P. Haber of counsel), for respondent.
Tsyngauz & Associates, P.C., New York, N.Y. (Yevgeny Tsyngauz, Simon I. Malinowski, and Eleazar Jacobs of counsel), for nonparty-appellant.
McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (Richard P. Haber of counsel), for respondent.
CHERYL E. CHAMBERS, J.P. LEONARD B. AUSTIN ROBERT J. MILLER LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the appeal from so much of the first order as granted that branch of the plaintiff's motion which was for an order of reference is dismissed, as the appellant is not aggrieved by that portion of the order (see CPLR 5511 ); and it is further,
ORDERED that the appeal from the second order is dismissed, as the appellant is not aggrieved thereby (see CPLR 5511 ); and it is further,
ORDERED that the first order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
In June 2013, the plaintiff commenced this mortgage foreclosure action against Vladimir Tsimbalisty (hereinafter the defendant), among others, and filed a notice of pendency against the subject property. An amended complaint and an amended notice of pendency were filed on June 17, 2014. The defendant filed an answer through his court-appointed guardian ad litem. On June 29, 2016, Brighton Seven Management Corp. (hereinafter the appellant) purchased the property from the defendant. In August 2016, the plaintiff moved, inter alia, for an order of reference. By notice of cross motion dated October 31, 2016, the appellant sought leave to intervene in the action. In an order dated March 6, 2017, the Supreme Court granted that branch of the plaintiff's motion and denied the appellant's cross motion. In a second order of the same date, the court, among other things, granted that branch of the plaintiff's motion, and appointed a referee to compute the amount due to the plaintiff.
The Supreme Court providently exercised its discretion in denying the appellant's cross motion for leave to intervene. "Intervention under CPLR 1012 and 1013 requires a timely motion" ( Castle Peak 2012–1 Loan Trust v. Sattar, 140 A.D.3d 1107, 1108, 35 N.Y.S.3d 368 ). In considering whether a motion to intervene is timely, "courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party" ( Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201, 906 N.Y.S.2d 231 ). Another factor is the extent of the time lag between the making of the motion and the proposed intervenor's acquisition of knowledge of the circumstances upon which the motion for leave to intervene is based (see Matter of Stanford Assoc. v. Board of Assessors of Town of Niskayuna, 39 A.D.2d 800, 800–801, 332 N.Y.S.2d 286 ). Here, the appellant took title to the subject property on June 29, 2016, at which time the plaintiff had filed a notice of pendency, but did not move for leave to intervene until approximately four months later. Under these circumstances, the appellant's cross motion for leave to intervene in the action was untimely (see Castle Peak 2012–1 Loan Trust v. Sattar, 140 A.D.3d at 1108, 35 N.Y.S.3d 368 ).
In light of our determination that the Supreme Court providently exercised its discretion in denying the appellant leave to intervene, the appellant is not aggrieved by the determinations made in the action other than the denial of its cross motion for leave to intervene (see CPLR 5511 ; Federal Natl. Mtge. Assn. v. Sanchez, 172 A.D.3d 1005, 1007, 98 N.Y.S.3d 475 ; Spota v. County of Suffolk, 110 A.D.3d 785, 787, 973 N.Y.S.2d 657 ). Accordingly, the appeal from so much of the first order as granted that branch of the plaintiff's motion which was for an order of reference and the appeal from the second order must be dismissed (see CPLR 5511 ).
CHAMBERS, J.P., AUSTIN, MILLER and CHRISTOPHER, JJ., concur.