Opinion
2011-12-27
JP MORGAN CHASE BANK, N.A., etc., respondent, v. Jon EDELSON, et al., defendants;C–Con Corp., proposed intervenor-appellant.
Patricia Gillard, East Moriches, N.Y., for proposed intervenor-appellant. Shapiro, DiCarlo & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), for respondent.
Patricia Gillard, East Moriches, N.Y., for proposed intervenor-appellant. Shapiro, DiCarlo & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), for respondent.
In an action, inter alia, to foreclose a mortgage, the proposed intervenor, C–Con Corp. appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated September 22, 2010, which denied, as untimely, its motion pursuant to CPLR 1012(a) or, alternatively, pursuant to CPLR 1013, for leave to intervene in the action, and thereafter to vacate a judgment of foreclosure entered March 3, 2010, and pursuant to, inter alia, CPLR 3211(a)(3) and (10) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
Intervention pursuant to either CPLR 1012 or CPLR 1013 requires a timely motion ( see CPLR 1012, 1013; T & v. Constr. Corp. v. Pratti, 72 A.D.3d 1065, 898 N.Y.S.2d 875; Oparaji v. Weston, 293 A.D.2d 592, 593, 740 N.Y.S.2d 238; Rectory Realty Assoc. v. Town of Southampton, 151 A.D.2d 737, 543 N.Y.S.2d 128). Here, the proposed intervenor, C–Con Corp. (hereinafter the appellant) moved, inter alia, pursuant to CPLR 1012 or, alternatively, CPLR 1013, for leave to intervene in this action for the purpose of, among other things, asserting a defense based on the plaintiff's alleged lack of standing to commence this foreclosure action. The appellant's motion was made almost four years after the plaintiff filed a notice of pendency in this action, almost two years after it acquired its interest in the subject premises, and months after the Supreme Court awarded a judgment of foreclosure and sale in this action. In view of the appellant's undue delay in seeking leave to intervene, the Supreme Court properly denied its motion as untimely ( see Carnrike v. Youngs, 70 A.D.3d 1146, 1147, 895 N.Y.S.2d 225; Oparaji v. Weston, 293 A.D.2d at 593, 740 N.Y.S.2d 238; Vacco v. Herrera, 247 A.D.2d 608, 669 N.Y.S.2d 228; RKH Holding Corp. v. 207 Second Ave. Realty Corp., 236 A.D.2d 254, 255, 653 N.Y.S.2d 558; Greenpoint Sav. Bank v. McMann Enters., 214 A.D.2d 647, 648, 625 N.Y.S.2d 273; Rectory Realty Assoc. v. Town of Southampton, 151 A.D.2d at 738, 543 N.Y.S.2d 128).
In light of our determination, we need not reach the appellant's remaining contentions.