| Town of N. Elba v Grimditch |
| 2012 NY Slip Op 05212 [96 AD3d 1305] |
| June 28, 2012 |
| Appellate Division, Third Department |
| Town of North Elba et al., Plaintiffs, v William H.Grimditch Jr. et al., Respondents. John M. McMillin III et al., ProposedIntervenors-Appellants. |
—[*1] James M. Brooks, Lake Placid, for respondents.
Rose, J.P. Appeal from an order of the Supreme Court (Meyer, J.), entered March 24, 2011in Essex County, which, among other things, denied a motion by John M. McMillin III, Ellen M.McMillin, Richard M. Moccia and Leslie Moccia for leave to intervene.
The underlying facts are more fully set forth in our decision in Town of N. Elba vGrimditch (96 AD3d 1300 [2012] [decided herewith]). Briefly, plaintiffs commenced anaction against defendants seeking, among other things, a permanent injunction preventing themfrom constructing boathouses in the waters of Lake Placid adjacent to their lakeside parcels ofproperty on the ground that the boathouses were in violation of the applicable land use code.John M. McMillin III, Ellen M. McMillin, Richard Moccia and Leslie Moccia (hereinafter theproposed intervenors) moved to intervene in the action pursuant to CPLR 1012 and 1013claiming that, as owners of property adjoining the parcel owned by defendants Wayne H.Grimditch and Carol Lynn Grimditch Roda, they would be harmed by the construction of the[*2]allegedly illegal boathouse. Supreme Court denied the motionto intervene, and the proposed intervenors appeal.[FN*]We reverse.
Initially, we disagree with the proposed intervenors' contention that they qualify forintervention as of right pursuant to CPLR 1012 (a) (3). That statute does not apply here as theaction between plaintiffs and defendants does not involve "the disposition or distribution of, orthe title or a claim of damages for injury to, property" (CPLR 1012 [a] [3]; compare US Bank N.A. v Gestetner, 74AD3d 1538, 1541 [2010]). We agree, however, that intervention should have been grantedby permission pursuant to CPLR 1013. The proposed complaint raises issues of law and factcommon to the litigation between plaintiffs and defendants, namely the legality of the boathouseunder the applicable land use code. As the proposed intervenors have an interest in the litigationby virtue of their status as owners of adjoining premises (see Little Joseph Realty v Town ofBabylon, 41 NY2d 738, 744 [1977]), and as defendants have not demonstrated thatintervention would cause undue delay or prejudice (see CPLR 1013; Matter of RentStabilization Assn. of N.Y. City v New York State Div. of Hous. & Community Renewal,252 AD2d 111, 116 [1998]), Supreme Court should have granted the motion to intervene (seeMatter of Clinton v Summers, 144 AD2d 145, 147 [1988]; Reed v Village ofLarchmont, 19 AD2d 624, 624 [1963]). Accordingly, upon remittal in the accompanyingappeal of the proposed intervenors' separate action, the pending actions should be consolidated.
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motion granted.
Footnote *: The proposed intervenorssubsequently commenced a separate action against Wayne H. Grimditch and Carol LynnGrimditch Roda and, in an accompanying appeal, we reverse Supreme Court's order dismissingthat action (see Town of N. Elba v Grimditch, 96 AD3d 1300 [2012] [decided herewith]).