| T & V Constr. Corp. v Pratti |
| 2010 NY Slip Op 03433 [72 AD3d 1065] |
| April 27, 2010 |
| Appellate Division, Second Department |
| T & v Construction Corp., Respondent, v Mario J. Pratti etal., Defendants, and U.S. Bank National Association, ProposedIntervenor-Appellant. |
—[*1] Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Bruce J. Bergmanof counsel), for respondent.
In an action, inter alia, to foreclose a mortgage, the proposed intervenor, U.S. Bank NationalAssociation, as Trustee for Asset Backed Pass Through Certificates, Series 200-HE1, appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Sgroi, J.),dated March 13, 2009, as denied those branches of its motion which were pursuant to CPLR1012 to intervene as of right in the action or, in the alternative, pursuant to CPLR 1013 for leaveto intervene in the action, and to compel the return of proceeds from the sale of the subjectpremises based on the doctrine of equitable subrogation.
Ordered that the order is affirmed insofar as appealed from, with costs.
Intervention under CPLR 1012 and 1013 requires a timely motion (see CPLR 1012,1013; Oparaji v Weston, 293 AD2d 592, 593 [2002]; Rectory Realty Assoc. v Townof Southampton, 151 AD2d 737 [1989]). Here, the motion of the proposed intervenor, U.S.Bank National Association, as Trustee for Asset Backed Pass Through Certificates, Series200-HE1 (hereinafter U.S. Bank), was untimely (see Oparaji v Weston, 293 AD2d at593; Vacco v Herrera, 247 AD2d 608 [1998]). U.S. Bank moved, inter alia, pursuant toCPLR 1012 to intervene as of right in this foreclosure action or, in the alternative, pursuant toCPLR 1013 for leave to intervene in the action for the purpose of asserting a defense based onthe doctrine of equitable subrogation. The motion was made approximately two years after theplaintiff filed its notice of pendency, and approximately eight months after a judgment offoreclosure and sale was entered in this action. The subject premises had already been soldpursuant to the judgment of foreclosure and sale prior to U.S. Bank's motion. The plaintiff wouldbe prejudiced if it were required to relitigate this foreclosure action, which has already beenprosecuted and completed (see Chesney v Chesney, 260 AD2d 340, 341 [1999];Rectory Realty Assoc. v Town of Southampton, 151 AD2d at 738). Under thesecircumstances, U.S. Bank was not entitled to intervene in the action (see Carnrike v Youngs, 70 AD3d1146, 1147 [2010]; Oparaji v Weston, 293 AD2d at 593; Vacco v Herrera,247 AD2d 608 [1998]; Rectory Realty Assoc. v Town of Southampton, 151 AD2d at737-738).[*2]
In light of our determination, we need not reach U.S.Bank's remaining contentions. Rivera, J.P., Florio, Miller and Austin, JJ., concur. [PriorCase History: 2009 NY Slip Op 30587(U).]