Opinion
No. 2008-01091.
March 23, 2010.
In an action, inter alia, to recover damages for breach of contract, the proposed intervenor American Home Assurance Company appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated January 7, 2008, which denied its motion for leave to intervene, to vacate a stay of the action pending the completion of federal criminal proceedings in an action entitled United States v Catapano, pending in the Unites States District Court for the Eastern District of New York under docket No. 05-CR-229, and to sever a cause of action assigned by it to the plaintiff so that it may proceed to trial.
Ingram Yuzek Gainen Carroll Bertolotti, LLP, New York, N.Y., (Mark E. Klein and Jennifer G. Buesser of counsel), for proposed intervenor-appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y., (Francis F. Caputo, Percival Bailey, and Karen M. Griffin of counsel), for respondent.
Before: Covello, J.P., Santucci, Chambers and Lott, JJ., concur.
Ordered that the order is affirmed, with costs.
Contrary to the proposed intervener's contention, its motion for leave to intervene was untimely, and granting that motion would result in prejudice to the defendant, including the possibility of inconsistent verdicts and the burden of separately trying two related claims ( see CPLR 1012 [a]; 1013; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 738; Matter of Nor star Apts. v Town of Clay, 112 AD2d 750, 751).
In any event, even if the motion was timely, the proposed intervenor was not entitled to intervene in this action ( see CPLR 1012 [a] [2]). The proposed intervener's interest is adequately represented by the plaintiff, who, pursuant to a cooperation agreement between them, is under a fiduciary duty to separately identify the proposed intervener's claim and "vigorously and promptly" prosecute it. If there is a recovery, the plaintiff and the proposed intervenor are required to share the proceeds according to a distribution formula.
The denial of leave to intervene at this time was a provident exercise of the Supreme Court's discretion ( see CPLR 1013; Osman v Sternberg, 168 AD2d 490).
The proposed intervener's remaining contentions are academic in light of our determination.