Opinion
Index No. 611727/2020
11-07-2022
Avi Popack, Plaintiff, v. Judith Glikman, Defendant JOSHUA GLIKMAN-Proposed Intervenor.
Stuart A. Blander, Esq., of Heller, Horowitz & Feit PC, Attorney for Plaintiff. Danielle I. Siegal, Esq., of Stein, Farkas & Schwartz LLP., Attorney for Judith Glikman. Harvey W. Spizz, Esq., of Spizz & Cooper, Attorney for Joshua Glikman.
Unpublished Opinion
Stuart A. Blander, Esq., of Heller, Horowitz & Feit PC, Attorney for Plaintiff.
Danielle I. Siegal, Esq., of Stein, Farkas & Schwartz LLP., Attorney for Judith Glikman.
Harvey W. Spizz, Esq., of Spizz & Cooper, Attorney for Joshua Glikman.
CONRAD D. SINGER, J.
The following papers read on this motion:
Notice of Motion and Supporting Papers 1
Affirmation in Opposition 2
Affirmation in Reply 3
Affidavit in Support 4
Non-party proposed intervenor Joshua Glikman, ["Glikman" or "proposed intervenor"], moves this court for an Order pursuant to CPLR §§ 1012(2) and/or 1013, permitting him to intervene in this action. The plaintiff, Avi Popack ["plaintiff"], opposes the motion, and the defendant, Judith Glikman ["defendant"], supports the proposed-intervenor's motion. Mr. Glikman's motion to intervene is determined as follows:
The plaintiff commenced this action by filing a Summons and Complaint and Notice of Pendency on October 22, 2020. Issue was joined by the defendant's service of an Answer dated December 2, 2020. This is an action for specific performance of a contract of sale dated August 10, 2020, between the plaintiff as purchaser and the defendant as seller [the "Contract"] with respect to residential property known as 845 Broadway, Woodmere, New York [the "Property"]. The Contract has a purchase price of $1,899,775, and required a contract deposit of $189,777.00, which was paid by the plaintiff.
The plaintiff seeks an Order against the defendant: 1) setting forth a judicial declaration that she wrongfully repudiated her obligations under the parties' Contract, and directing the defendant to specifically perform her obligations under the Contract and to convey title to the Property and to proceed with the parties' additional agreement for the plaintiff to purchase certain furniture from the defendant; 2) directing her to provide the plaintiff with access to the Property for the purpose of conducting an appraisal and a survey of the Property and to otherwise reasonably cooperate in the plaintiff's attempts to obtain mortgage financing; and 3) awarding the plaintiff with all damages incurred and to be incurred as a result of the defendant's failure to perform her contractual obligations, including reasonable attorneys' fees.
By Short Form Order entered September 29, 2021, Hon. Helen Voutsinas, when she presided over this case as a Supreme Court Justice, denied the plaintiff's motion and the defendant's cross-motion for summary judgment, having determined, inter alia, that the defendant had anticipatorily repudiated the parties' Contract, but that there remain triable issues of fact as to whether the plaintiff was "ready, willing, and able" to perform the parties' Contract. (NYSCEF Doc. No. 40).
On June 30, 2022, nearly one year after the Court issued its Short Form Order denying the parties' respective summary judgment motions, Glikman filed his Motion to Intervene, and on July 21, 2022, the plaintiff filed a Note of Issue for a non-jury trial. There is presently a pre-trial conference in this matter scheduled for January 5, 2023.
The proposed intervenor's motion includes a proposed intervenor Complaint pursuant to CPLR § 1014. The proposed intervenor is the defendant's husband, but he is not in title to the premises. However, he asserts that he has an equitable interest in the Property and that therefore he has a legitimate claim to the premises. By his proposed intervenor Complaint, he asks the Court to dismiss the plaintiff's complaint and to enter a declaration that pursuant to the constructive trust doctrine he has title to the premises with the defendant as tenants by the entirety.
The proposed intervenor's motion includes a supporting affidavit from Glikman, in which he attests that the title to the subject Property previously included his name, but that in or about June of 2002, when he and the defendant were experiencing marital difficulties and entered into a separation agreement, he agreed to transfer his interest in the property as consideration for some of his marital obligations. He attests that he and his wife never physically separated and that they subsequently reconciled approximately one year later, but they never bothered to add him back to the title. He further contends that his wife, the defendant, holds the Property in a constructive trust for his benefit, and that his wife will be unjustly enriched if his interest in the Property is not restored.
Glikman further contends that the plaintiff had knowledge of his equitable claim to the Property before the parties signed the Contract, that Glikman would be bound by any judgment entered herein and that his wife's representation of his interests in this matter is inadequate.
CPLR § 1001, entitled Necessary Joinder of Parties, provides, in pertinent part, as follows:
"[a] Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant. (CPLR § 1001[a]).
CPLR §§ 1012 and 1013 concern applications to intervene in an action. CPLR § 1012, entitled "Intervention as of Right..." provides, in pertinent part, as follows:
"Upon timely motion, any person shall be permitted to intervene in any action:
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2. when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment;.... (CPLR § 1012[2]).
CPLR § 1013, entitled "Intervention by Permission", provides, in pertinent part, as follows:
"Upon timely motion, any person may be permitted to intervene in any action... when the person's claim or defense and the main action have a common question of law or fact. In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party." (CPLR § 1013).
In this case, the Court finds that Glikman has failed to demonstrate a basis to grant his motion to intervene under CPLR §§ 1001(a), 1012, or 1013. The Court finds that joinder of Glikman is not required in this case under CPLR §1001(a). While Glikman may be affected by the outcome of this action, he has failed to demonstrate that he would be" inequitably affected" by same. (Country Village Towers Corp. v. Preston Communications, Inc., 289 A.D.2d 363, 364 [2d Dept 2001] [emphasis supplied]).
With respect to Glikman's application to intervene, CPLR §§ 1012 and 1013 both require that the proposed intervenor's motion be "timely" and in this case, the proposed intervenor has inexplicably waited an extensive period of time to file his motion to intervene. The Court "do[es] not engage in mere mechanical measurements of time" when examining the timeliness of a motion to intervene, and is instead guided by "whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party". (Deutsche Bank Natl' Trust Co. v. Allenstein, 201 A.D.3d 783, 785 [2d Dept 2022]). In this case, the proposed intervenor acknowledges that he was aware of the underlying litigation at least as early as the Notice of Entry dated October 28, 2021 pertaining to the Court's Short Form Order denying summary judgment, and yet, he provides no explanation for waiting until June 30 the following year to file his motion to intervene.
Additionally, while the proposed intervenor argues that "additional discovery should not be burdensome", his proposed intervenor complaint asserts new legal and factual issues in addition to those involved in the plaintiff's specific performance claim against the defendant, including whether the wife holds the subject Property in a constructive trust for Glikman's benefit. The Court finds that granting the application to intervene would delay the resolution of this case, in which the Note of Issue has already been filed, and the Court is not persuaded by the proposed intervenor's conclusory assertion that additional discovery "should not be burdensome". (Reply Affirmation, ¶ 10).
The Court further finds that the proposed intervenor has failed to articulate how his wife would not adequately represent his interest as far as preventing the Property from being transferred to the plaintiff, which is the outcome that both Glikman and his wife are seeking in this matter. (CPLR § 1012). Additionally, the Court finds that the proposed intervenor has failed to establish that his claim(s) and/or defenses and the main action share a "common question of law or fact". In this case, pursuant to the Court's Short Form Order entered September 29, 2021, [NYSCEF Doc. No. 40], the Court determined that the remaining issue for trial is whether the plaintiff was "ready, willing, and able" to perform under the parties' Contract. The Court finds no overlap or commonality between Glikman's potential equitable claim to the Property and that issue.
The Court also notes that although Glikman attests that the plaintiff and his broker were both aware of Glikman's potential equitable claim to the Property at or before the parties signed the Contract, Glikman submits no evidence supporting that assertion. While the defendant submitted an affidavit supporting Glikman's motion, she made no mention of what, if anything, the plaintiff knew before the parties' signed the contract. Instead, she attests only that when she and Glikman previously separated, Glikman complied with her demand to transfer their marital home to her, and that, upon reconciliation, it was always their intention to transfer their marital home back to a tenancy by the entirety.
As the proposed intervenor has failed to establish a basis to grant his motion under CPLR §§ 1001, 1012 or 1013, the proposed intervenor's motion shall be DENIED.
Accordingly, it is hereby, ORDERED, that the proposed intervenor's motion to intervene in this matter is DENIED, and it is further, ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED.