Opinion
Index No. 508641/20
09-20-2024
Board of Managers of One Sunset Park Condominium, Plaintiff, v. Wilson Wong, Joshua Tee, Dorothea Lee, Jin Xia Huang, Jie Shan Lee, Jian Ming Weng, 4401 Sunset Holdings LLC, Mei - Chau Kwok, Billy Hum, Xuan Ling Pan, En Li Chen, Larry Rothchild, Martin Curphey, Marina Rasina, Aaron M. Meshon, Ayako Otoshi, Jiayuan Peng, Oakville Holdings: LLC, Jian Lin Li, Xi Ping Chen, Ting Lin, Shi Qiang Lin, Lorry Wall- Gibson, Peter Gibson, Minnea Lin, Jonathan Rinehart, John Benson, Maxim Plyshevsky, Sui Ting Cao, Hongpei Cao, Pei Zhu Luo, Patrick B. Coleman, Muxian Wang, Xue Fang Ni, Emily Mann, 702 44TH Street, LLC, David Y. Akey, Chelsea R. Smith, Sally Yap, Janet Matthews, Doris Renate Kimbrough, Eleanor C. Whitney, Shepherd Trust, Robert Gertler, Vivi an Parrilla, Anna Zheng, Meng Li Wang, Ke Yong Wang, Zhen Liang Li, Bin Bin Cheng, Jodie C. Cheng, Hiu Ming Cheng, Sheng Lian Wang, He Zhu Chen and Shu Yu Zheng, Defendants.
Unpublished Opinion
PRESENT: HON. KERRY J. WARD, Justice.
HON. KERRY J. WARD, JUSTICE
The following e-filed papers read herein:
NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) 195. 197-198
Opposing Affidavits (Affirmations) 201
Upon the foregoing papers in this partition action regarding the 54-unit condominium building located at 702 44th Street in Brooklyn (Building), non-party 41-31 Haight LLC (Proposed Intervenor) moves (in motion sequence [mot. seq.] six) for an order: (1) granting it leave to intervene in this action, pursuant to CPLR 1012 (a) (3) and 1013, and (2) vacating or modifying the court's September 25, 2023 decision and order (Silber. J.) (NYSCEF Doc No. 179) regarding the forfeiture of its $980,000.00 down payment under a purchase and sale agreement for the Building (PSA) (NYSCEF Doc No. 195).
Background
On April 3, 2019, there was a fire in the Building and the entire structure was declared unsafe for habitation. On January 14, 2020, 72.45% of the condominium unit owners voted to not restore the Building, but to sell the burnt-put shell and distribute the sale proceeds and the condominium's insurance among the unit owners, pursuant to a partition action, as required by RPL 339-cc. On May 20, 2020, this partition action was commenced for that purpose.
By a March 1, 2021 order, the court (Silber, J.) granted, plaintiff s summary judgment motion and appointed a referee to ascertain the fights, shares and interests of the parties (NYSCEF Doc No, 88). The referee subsequently filed a March 23, 2022 referee report (NYSCEF Doc No. 89), after which the parties sought to settle this partition action with a private sale of the Building. On October 17, 2022, an Interlocutory Judgment of Partition and Sale was entered, authorizing a private sale of the Building (NYSCEF Doc No. 141).
The Proposed Intervenor entered into an Agreement of Purchase and Sale (PSA) for the purchase of the Building but failed to appear at the "time of the essence" closing: on July 11, 2023, as set forth in the referee's August 2, 2023 report (NYSCEF Doc No. 148). The referee subsequently moved, by order to show cause, to confirm the August 2, 2023 referee report, find the Proposed Intervenor in default under the PSA, allow the condominium to retain the Proposed Intervenor's down payment and authorize the referee to re-market the Building for sale (NYSCEF Doc No. 165).
By a September 25, 2023 decision and order, the court (Silber, J,) ordered, adjudged and declared that "the Buyer has defaulted under the P[SA] previously approved by the Court, and the plaintiff condominium, the Seller, is entitled to retain the down payment as result of the default, pursuant to the terms of the [PSA]" (NYSCEF Doc No. 179 at 2).
On February 16, 2024, nearly five months after the court's September 2023 decision and order, non-party 41-31 Haight LLC moved for an order granting it leave to intervene in this action, pursuant to CPLR 1012 (a) (3) and 1013, and, upon intervention, vacating or modifying the court's September 25, 2023 decision and order regarding the forfeiture of its down payment. Importantly, the Proposed Intervenor's motion for leave to intervene, pursuant to CPLR 1012 and 1013, does not include a proposed pleading, as specifically required by CPLR 1014.
Discussion
CPLR 1014 provides that "[a] motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought." The Second Department has held that it is reversible error for the trial court to grant a motion for leave to intervene where the proposed intervenor failed to submit a proposed pleading, as required by CPLR 1014 (MTGLQ Investors, L.P. v Noftell, 204 A.D.3d 786, 786 [2022] [holding that "(a) motion seeking leave to intervene, whether pursuant to CPLR 1012 or 1013, shall be accompanied by the proposed intervenor's proposed pleading . . ."]: Beneficial Homeowner Serv. Corp., v Chambers, 145 A.D.3d 750, 752 [2016] [holding that motion for leave to intervene should have been denied because proposed intervenor failed to submit a proposed pleading]).
Here, the Proposed Intervenor failed to submit a proposed pleading with its intervention motion, as required by CPLR 1014. Consequently, the Proposed Intervenor's motion for leave to intervene in this partition action is denied. Having denied intervention on this insufficient record, the court need not consider that, branch of the Proposed Intervenor's motion seeking to vacate or modify the court's September 25, 2023 decision and order. Accordingly, it is hereby
ORDERED that Proposed Intervenor's motion (mot. seq. six) is denied without prejudice and with leave to renew upon submission of proper papers.
This constitutes the decision and order of the court.