Opinion
717, 382451/09.
04-05-2016
CITIMORTGAGE, INC., Plaintiff–Respondent, v. George DULGEROFF, et al., Defendants, Board of Managers of the Parkchester South Condominium, Defendant Respondent, Citibank (South Dakota) N.A., et al., Defendants, West Fork Capital Equities, LLC, Nonparty Appellant.
Law Offices of Thomas J. Finn, Forest Hills (Thomas J. Finn of counsel), for appellant. Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
Law Offices of Thomas J. Finn, Forest Hills (Thomas J. Finn of counsel), for appellant.
Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, SAXE, MOSKOWITZ, KAHN, JJ.
Opinion Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered August 13, 2014, which denied nonparty West Fork Capital Equities, LLC's motion to intervene and to vacate the default judgment of foreclosure, unanimously affirmed, without costs.
Contrary to the motion court's ruling, West Fork's failure to attach the judgment of foreclosure to its motion to intervene and to vacate the judgment is not a fatal defect. At most, the court should have directed West Fork to supplement or resubmit its papers (see Sea Trade Mar. Corp. v. Coutsodontis, 111 A.D.3d 483, 486, 978 N.Y.S.2d 115 [1st Dept.2013] ). However, contrary to West Fork's argument, the order on appeal need not be vacated for failure to recite the papers on which it is based (see Singer v. Board of Educ. of City of N.Y., 97 A.D.2d 507, 468 N.Y.S.2d 25 [2d Dept.1983] ).
On the merits, plaintiff is correct that the fact that West Fork obtained its interest in the property after plaintiff had filed notice of pendency bound West Fork to the outcome of the foreclosure action (see CPLR 6501 ; 2386 Creston Ave. Realty, LLC v. M–P–M Mgt. Corp., 58 A.D.3d 158, 161, 867 N.Y.S.2d 416 [1st Dept.2008], lv. denied 11 N.Y.3d 716, 874 N.Y.S.2d 6, 902 N.E.2d 440 [2009] ). However, that alone would not definitively bar West Fork from intervening (see Westchester Fed. Sav. & Loan Assn. v. H.E.W. Constr. Corp., 29 A.D.2d 670, 286 N.Y.S.2d 382 [2d Dept.1968], lv. denied 21 N.Y.2d 646, 289 N.Y.S.2d 1027, 236 N.E.2d 864 [1968] ). Nor is intervention barred by the fact that the motion was made post-judgment (see Martinez v. Estate of Carney, 129 A.D.3d 607, 13 N.Y.S.3d 20 [1st Dept.2015] ).
Nevertheless, we affirm the denial of West Fork's motion, because there is nothing in the record that indicates that leaving the judgment standing would result in any injustice (see Amalgamated Bank v. Helmsley–Spear, Inc., 25 N.Y.3d 1098, 14 N.Y.S.3d 312, 35 N.E.3d 480 [2015] ). There was no fraud or collusion among the parties. Indeed, West Fork was on notice all along by virtue of the notice of pendency that its interest could be extinguished in the foreclosure action (see 2386 Creston Ave. Realty, 58 A.D.3d at 161, 867 N.Y.S.2d 416 ). Its failure to intervene earlier, while on notice that its rights were at stake, undermines any claim of injustice.