| George v Grand Bay Assoc. Enter. Inc. |
| 2007 NY Slip Op 09125 [45 AD3d 451] |
| November 20, 2007 |
| Appellate Division, First Department |
| Fernella George et al., Appellants, v Grand Bay AssociatesEnterprise Incorporated et al., Defendants, and Marco Mendez et al.,Intervenors-Respondents. |
—[*1] Solomon & Siris, P.C., Uniondale (Michael J. Siris of counsel), for respondents.
Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about May 4,2006, which, insofar as appealed from as limited by the briefs, granted intervenors' motion tointervene pursuant to CPLR 1012 (a) (3) and to dismiss the complaint pursuant to CPLR 3211 (a)(1) and CPLR 5523, and granted the cross motion of defendant Grand Bay Associates EnterpriseIncorporated (Grand Bay) to the extent that plaintiffs were directed to pay $2,263 per month fromApril 2004 through such time as plaintiffs remain in possession of the subject property to bedivided on a pro rata basis between Grand Bay and intervenors, unanimously affirmed, withoutcosts.
The motion to intervene was properly granted in this action where plaintiffs seek cancellationand reformation of a deed to property purchased by intervenors. As purchasers of the subjectproperty, intervenors had a real and substantial interest in the outcome of the litigationwarranting their intervention (see CPLR 1012 [a] [3]; Greenpoint Sav. Bank vMcMann Enters., 214 AD2d 647, 648 [1995]). Additionally, the court properly dismissed thecomplaint for failure to state a cause of action since the action was barred by CPLR 5523. Therecord evidence establishes that intervenors were good faith purchasers of the subject propertyand entitled to the protections afforded by CPLR 5523. Intervenors paid valuable considerationfor the property and justifiably relied on an order cancelling plaintiffs' notice of pendency, eventhough it had been entered on default (Da Silva v Musso, 76 NY2d 436 [1990];Aubrey Equities v Goldberg, 247 AD2d 253 [1998], lv denied 92 NY2d 802[1998]). Although plaintiffs successfully moved to vacate the default, intervenors had purchasedthe property prior to that time. However, the dismissal of the complaint was without prejudice toplaintiffs commencing an appropriate action against the initially named defendants for moneydamages (Da Silva v Musso, 76 NY2d at 444; CPLR 5523).
Directing plaintiffs to pay Grand Bay and intervenors $2,263 per month from April 2004[*2]through such time as plaintiffs remained in possession of theproperty was appropriate and in accordance with a prior court order with which plaintiffs did notcomply. The amount represented the mortgage payments for the property and was to be dividedon a pro rata basis between Grand Bay and intervenors.
We have considered plaintiffs' remaining contentions and find them unavailing.Concur—Andrias, J.P., Nardelli, Gonzalez, Sweeny and Malone, JJ.