| Carnrike v Youngs |
| 2010 NY Slip Op 01033 [70 AD3d 1146] |
| February 11, 2010 |
| Appellate Division, Third Department |
| Jonathan L. Carnrike, Respondent, v Roger Youngs, Defendant.Town of Chemung, Proposed Intervenor-Appellant. |
—[*1] Steven W. Barnstead, Elmira, for Jonathan L. Carnrike, respondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered November 13,2008 in Chemung County, which denied a motion by the Town of Chemung to intervene.
Plaintiff entered into an agreement to purchase certain real property from defendant inFebruary 2007. Eight months later, defendant accepted the offer of the Town of Chemung topurchase the same property. On December 10, 2007, plaintiff commenced the underlying actionagainst defendant asserting breach of contract and seeking specific performance of the parties'agreement. Plaintiff also filed a notice of pendency against the property, which was served onthe Town on December 12, 2007. Six weeks after receiving the notice of pendency, the Townaccepted a warranty deed to the property from defendant. Thereafter, by order dated May 29,2008, plaintiff was granted a default judgment in the underlying action, pursuant to which hewas awarded a bargain and sale deed conveying ownership of the property to him. The Town'ssubsequent motion to intervene in the underlying action—received by Supreme Court onAugust 28, 2008—was denied on the basis that the underlying action was no longerpending. This appeal ensued.[*2]
We affirm. Although intervention may be permitted as ofright when an action involves property and the proposed intervenor may be adversely affected bya judgment, or by permission of the court when the proposed intervenor's claim or defense andthe underlying action have a common question of law or fact, in either case a motion to intervenemust be timely made (see CPLR 1012 [a] [3]; 1013). Here, in addition to acknowledgedreceipt of a notice of pendency at least six months prior to entry of the default judgment, theTown was also provided notice of the underlying action in the form of a letter from plaintiff'sattorney dated February 25, 2008. The letter informed the Town that its acquisition of theproperty was subject to plaintiff's rights in the underlying action and that plaintiff would hold theTown responsible for any and all damages incurred on the property as a result of its activitythere. Notwithstanding such information, the Town waited until the action was no longerpending to file its motion to intervene (see Town of Crown Point v Cummings, 300AD2d 873, 874 [2002]). Under such circumstances, we do not consider the motion timely(see Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 738 [1989];compare Matter of Stanford Assoc. v Board of Assessors of Town of Niskayuna, 39AD2d 800, 800-801 [1972], lv denied 31 NY2d 643 [1972]).
Mercure, J.P., Spain, Rose and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.