Opinion
2018–08863 Index No. 7550/09
11-27-2019
PHOENIX LIFE INSURANCE COMPANY, Respondent, v. Jacob P. ILIT A, et al., Defendants, Edward Pinkesz, Nonparty-Appellant.
Law Office of Susie Chovev, Esq. PLLC, Cedarhurst, NY, for nonparty-appellant. Abrams, Fensterman, Fensterman, Eisman Formato, Ferrara & Wolf, Brooklyn, N.Y. (Susan Mauro of counsel), for respondent.
Law Office of Susie Chovev, Esq. PLLC, Cedarhurst, NY, for nonparty-appellant.
Abrams, Fensterman, Fensterman, Eisman Formato, Ferrara & Wolf, Brooklyn, N.Y. (Susan Mauro of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to rescind three life insurance policies and for a judgment declaring that the policies are null and void, nonparty Edward Pinkesz appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated May 18, 2018. The order denied his motion pursuant to CPLR 1012(a)(3) for leave to intervene in the action as a defendant.
ORDERED that the order is affirmed, with costs.
In April 2009, the plaintiff commenced this action against various trusts and trustees, as defendants, to rescind three life insurance policies and for a judgment declaring that the policies are null and void. In May 2018, nonparty Edward Pinkesz (hereinafter the appellant) moved pursuant to CPLR 1012(a)(3) for leave to intervene in the action as a defendant, asserting that he was the true owner of two of the subject policies. The Supreme Court denied the appellant's motion.
A person is permitted to intervene in an action as of right when, among other things, "the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment" ( CPLR 1012[a][3] ). "A motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought" ( CPLR 1014 ; see New Hope Missionary Baptist Church, Inc. v. 466 Lafayette Ltd., 169 A.D.3d 811, 812, 94 N.Y.S.3d 379 ). Further, "[i]ntervention under CPLR 1012 ... requires a timely motion" ( Castle Peak 2012–1 Loan Trust v. Sattar, 140 A.D.3d 1107, 1108, 35 N.Y.S.3d 368 ; see CPLR 1012 ).
Here, it is undisputed that the appellant failed to submit a proposed answer, thereby failing to comply with CPLR 1014 (see New Hope Missionary Baptist Church, Inc. v. 466 Lafayette Ltd., 169 A.D.3d at 812, 94 N.Y.S.3d 379 ; Beneficial Homeowner Serv. Corp. v. Chambers, 145 A.D.3d 750, 752, 44 N.Y.S.3d 87 ). Moreover, the appellant's motion was not timely, as he did not move for leave to intervene until nine years after commencement of this action despite being aware of the action (see Fulton Holding Group, LLC v. Lindoff, 165 A.D.3d 1045, 1047, 87 N.Y.S.3d 66 ; JP Morgan Chase Bank, N.A. v. Edelson, 90 A.D.3d 996, 997, 934 N.Y.S.2d 847 ). Furthermore, the appellant's submissions failed to demonstrate that he has a "real and substantial interest in the outcome of the proceedings" ( Perl v. Aspromonte Realty Corp., 143 A.D.2d 824, 825, 533 N.Y.S.2d 147 ; see Trent v. Jackson, 129 A.D.3d 1062, 1062–1063, 11 N.Y.S.3d 682 ).
The appellant's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to deny the appellant's motion.
CHAMBERS, J.P., AUSTIN, DUFFY and CHRISTOPHER, JJ., concur.