| Halstead v Dolphy |
| 2010 NY Slip Op 00810 [70 AD3d 639] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Dwight Halstead, Respondent, v Hopeton Dolphy, AlsoKnown as Hopeton Dolpy, et al., Defendants, and Deutche Bank National Trust Company,Respondent. Cambridge Home Capital, LLC, Proposed Intervenor-Appellant. (And a Third-PartyAction.) |
—[*1] Houser & Allison, A Professional Corporation, New York, N.Y. (Sara Markert of counsel),for defendant-respondent.
In an action, inter alia, for a judgment declaring that certain deeds conveying certain realproperty are void, the proposed intervenor, Cambridge Home Capital, LLC, appeals, as limitedby its brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), datedJanuary 9, 2009, as denied that branch of its motion which was for leave to intervene pursuant toCPLR 1012.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and inthe exercise of discretion, without costs or disbursements, and that branch of the motion ofCambridge Home Capital, LLC, which was for leave to intervene is granted on condition thatCambridge Home Capital, LLC, stipulates to conduct no additional discovery in this action; inthe event that Cambridge Home Capital, LLC, fails to so stipulate, then the order is affirmedinsofar as appealed from, with one bill of costs; and it is further,
Ordered that the time for Cambridge Home Capital, LLC, to stipulate shall expire 30 daysfrom service upon it of a copy of this decision and order.
The appellant, Cambridge Home Capital, LLC (hereinafter Cambridge), demonstrated that itholds a mortgage on the real property which is the subject of this action, and that its interest inthe property may be adversely affected by the judgment sought. Cambridge's interest in thesubject property entitles it to intervene as a matter of right (see CPLR 1012 [a] [3]; NYCTL 1999-1 Trust v Chalom, 47AD3d 779, 780 [2008]; George vGrand Bay Assoc. Enter. Inc., 45 AD3d 451 [2007]). Although Cambridge did not seekleave to intervene until more than four years after the commencement of this action, interventionmay occur at any time, provided that it does not unduly delay the action or prejudice existingparties (see Poblocki v Todoro, 55AD3d 1346, 1347 [2008]; Matterof Romeo v New York State Dept. of Educ., 39 AD3d 916, 917 [2007]; see alsoAlexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC1012:5). Here, the motion for leave to intervene was made before a note of issue was filed inthis [*2]action, and Cambridge indicated its willingness toobviate delay and prejudice to the existing parties by stipulating that it will conduct no additionaldiscovery in this action. Under these circumstances, Cambridge should have been granted leaveto intervene on the condition that it so stipulated (see Poblocki v Todoro, 55 AD3d 1346 [2008]; cf. RectoryRealty Assoc. v Town of Southampton, 151 AD2d 737, 738 [1989]). Fisher, J.P., Miller,Eng and Hall, JJ., concur.