Opinion
11717 Index 654934/17
06-25-2020
PHOENIX CAPITAL FINANCE LTD., Plaintiff-Respondent, v. AXIA REALTY, LLC, Defendant-Respondent. Spiros Milonas, Intervenor-Respondent, Antonia Milonas, Proposed Intervenor-Appellant.
Meyers Tersigni Feldman & Gray LLP, New York (Anthony L. Tersigni of counsel), for appellant. Herrick, Feinstein LLP, New York (Michael Berengarten of counsel), for Phoenix Capital Finance Ltd., respondent. Meister Seelig & Fein LLP, New York (Stephen B. Meister of counsel), for Axia Realty, respondent.
Meyers Tersigni Feldman & Gray LLP, New York (Anthony L. Tersigni of counsel), for appellant.
Herrick, Feinstein LLP, New York (Michael Berengarten of counsel), for Phoenix Capital Finance Ltd., respondent.
Meister Seelig & Fein LLP, New York (Stephen B. Meister of counsel), for Axia Realty, respondent.
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 10, 2019, which denied the motion of proposed intervenor Antonia Milonas (Antonia) for leave to intervene in the subject action, unanimously affirmed, without costs.
Antonia did not meet the requirements for intervention as a matter of right under CPLR 1012(a)(2), (3) to assert her interests or Axia Realty's derivatively (see Atlas MF Mezzanine Borrower, LLC v. Macquarie Tex. Loan Holder LLC, 173 A.D.3d 608, 105 N.Y.S.3d 398 [1st Dept. 2019] ), and the court properly exercised its discretion in declining to grant an intervention that would have delayed the resolution of the Phoenix action pursuant to the negotiated settlement (see State of New York v. McLeod, 45 A.D.3d 282, 284, 845 N.Y.S.2d 29 [1st Dept. 2007], lv dismissed 10 N.Y.3d 758, 853 N.Y.S.2d 541, 883 N.E.2d 367 [2008] ). The court correctly found that Antonia did not provide a basis to revisit the Referee's designation of her husband, Spiros, as the manager authorized to make litigation decisions, including settlement of the underlying debt collection action. Antonia can seek to vindicate her rights against Spiros in a pending matrimonial action or other action, rather than in this settled and discontinued action concerning Axia's obligation to Phoenix.
We have considered Antonia's remaining arguments and find them unavailing.