| Wells Fargo Bank, N.A. v McLean |
| 2010 NY Slip Op 00838 [70 AD3d 676] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Wells Fargo Bank, National Association,Plaintiff, v Verone McLean, Defendant/Third-Party Plaintiff-Respondent, and MaxineGordon, Defendant/Third-Party Defendant-Respondent, et al., Defendants, et al., Third-PartyDefendant. NARI, Inc., Doing Business as Firestone Construction Company, ProposedIntervenor-Appellant. (And Another Third-Party Action.) |
—[*1] Janice L. Jessup, Freeport, N.Y., for defendant/third-party plaintiff-respondent.
In an action to foreclose a mortgage, the proposed intervenor, NARI, Inc., doing business asFirestone Construction Company, appeals from an order of the Supreme Court, Nassau County(Woodard, J.), entered March 4, 2009, which denied its motion pursuant to CPLR 1012 (a) (3) or1013 for leave to intervene in the action.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with one billof costs, and that branch of the motion of NARI, Inc., doing business as Firestone ConstructionCompany, which was for leave to intervene pursuant to CPLR 1013 is granted.
Upon a timely motion, a person is permitted to intervene as of right in an action involvingthe disposition of property where that person may be adversely affected by the judgment(see CPLR 1012 [a] [3]; Velazquez v Decaudin, 49 AD3d 712, 717 [2008]; George v Grand Bay Assoc. Enter.Inc., 45 AD3d 451, 452 [2007]; Greenpoint Sav. Bank v McMann Enters., 214AD2d 647 [1995]; but see Citibank,N.A. v Plagakis, 8 AD3d 604, 605 [2004]). In addition, a court, in its discretion, maypermit a person to intervene, inter alia, when the person's claim or defense and the main actionhave a common question of law or fact (see CPLR 1013). Whether intervention is soughtas a matter of right under CPLR 1012 (a), or as a matter of discretion under CPLR 1013, is oflittle practical significance since a timely motion for leave to intervene should be granted, ineither event, where the intervenor has a real and substantial interest in the outcome of theproceedings (see Berkoski v Board ofTrustees of Inc. Vil. of Southampton, 67 AD3d 840 [2009]; Matter of Bernstein v Feiner, 43 AD3d1161, 1162 [2007]; Sieger v Sieger, 297 AD2d 33, 36 [2002]; County ofWestchester v Department of Health of State of N.Y., 229 AD2d 460, 461 [1996]; Perl vAspromonte Realty Corp., 143 AD2d 824, 825 [1988]). In exercising its discretion, the courtshall consider whether the intervention will unduly delay the determination of the action orprejudice the substantial rights of any party (see Reliance Ins. Co. of N.Y. v Information Display Tech., 2 AD3d701 [2003]).[*2]
The defendant/third-party plaintiff, Verone McLean, wasthe original record owner of a house in Elmont (hereinafter the subject property), which wassubject to a mortgage given to the plaintiff's assignor to secure a loan McLean used to purchasethe property. Shortly after McLean purchased the subject property, a fire occurred therein, andMcLean filed a claim for fire damages against her insurer, Allstate Insurance Company(hereinafter the insurer). Thereafter, the defendant Maxine Gordon, a tenant residing at thesubject property, allegedly converted, to her own use, the insurance proceeds paid by the insurer.Subsequently, Gordon also allegedly signed a forged deed transferring the subject property toher, and entered into a construction contract with the proposed intervenor, NARI, Inc., doingbusiness as Firestone Construction Company (hereinafter NARI), a fire restoration company, torepair the fire damage.
Sometime thereafter, McLean defaulted on the mortgage, and the plaintiff commenced thisforeclosure action against her and Gordon. In the main foreclosure action, McLean asserted threecross claims against Gordon. Subsequently, McLean commenced a third-party action against,among others, Gordon and her attorney. McLean's claims were, in part, predicated on Gordon'salleged fraudulent transfer to herself of title to the subject property and the subsequentconversion of the insurance funds. In the foreclosure action, the Supreme Court awarded theplaintiff mortgagee summary judgment on the complaint. The court also granted that branch ofthe plaintiff's motion which was to direct its loan servicer to deposit into court the insuranceproceeds that were remaining at that time, after some payments had been made to NARI. NARIsubsequently moved pursuant to CPLR 1012 (a) (3) or 1013 for leave to intervene in the action.
In its proposed complaint, NARI asserted causes of action against Gordon to recoverdamages for breach of contract and fraud, and against McLean and the plaintiff to recover inquantum meruit for the value of the repair services allegedly performed at the subject property,and for which it had not been paid. Based on the foregoing, there are common questions of lawand fact pertaining to the various fraud claims asserted by McLean in the main action and NARIin its proposed complaint. Moreover, NARI has demonstrated a real and substantial interest inthe disbursement of the remaining insurance proceeds and, thus, in the outcome of the action (see Berkoski v Board of Trustees of Inc.Vil. of Southampton, 67 AD3d 840 [2009]; Matter of Bernstein v Feiner, 43AD3d at 1162; Sieger v Sieger, 297 AD2d at 36; County of Westchester vDepartment of Health of State of N.Y., 229 AD2d at 461; Perl v Aspromonte RealtyCorp., 143 AD2d at 825).
Accordingly, under the circumstances of this case, the Supreme Court should have grantedNARI leave to intervene pursuant to CPLR 1013. Skelos, J.P., Santucci, Dickerson and Roman,JJ., concur.