| JP Morgan Chase Bank, N.A. v Edelson |
| 2011 NY Slip Op 09596 [90 AD3d 996] |
| December 27, 2011 |
| Appellate Division, Second Department |
| JP Morgan Chase Bank, N.A., Respondent, v Jon Edelsonet al., Defendants. C-Con Corp., Proposed Intervenor-Appellant. |
—[*1] Shapiro, DiCarlo & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), forrespondent.
In an action, inter alia, to foreclose a mortgage, the proposed intervenor, C-Con Corp.appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated September 22,2010, which denied, as untimely, its motion pursuant to CPLR 1012 (a) or, alternatively,pursuant to CPLR 1013, for leave to intervene in the action, and thereafter to vacate a judgmentof foreclosure entered March 3, 2010, and pursuant to, inter alia, CPLR 3211 (a) (3) and (10) todismiss the complaint.
Ordered that the order is affirmed, with costs.
Intervention pursuant to either CPLR 1012 or CPLR 1013 requires a timely motion (seeCPLR 1012, 1013; T & V Constr.Corp. v Pratti, 72 AD3d 1065 [2010]; Oparaji v Weston, 293 AD2d 592, 593[2002]; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737 [1989]). Here,the proposed intervenor, C-Con Corp. (hereinafter the appellant) moved, inter alia, pursuant toCPLR 1012 or, alternatively, CPLR 1013, for leave to intervene in this action for the purpose of,among other things, asserting a defense based on the plaintiff's alleged lack of standing tocommence this foreclosure action. The appellant's motion was made almost four years after theplaintiff filed a notice of pendency in this action, almost two years after it acquired its interest inthe subject premises, and months after the Supreme Court awarded a judgment of foreclosure andsale in this action. In view of the appellant's undue delay in seeking leave to intervene, theSupreme Court properly denied its motion as untimely (see Carnrike v Youngs, 70 AD3d 1146, 1147 [2010]; Oparaji vWeston, 293 AD2d at 593; Vacco v Herrera, 247 AD2d 608 [1998]; RKHHolding Corp. v 207 Second Ave. Realty Corp., 236 AD2d 254, 255 [1997]; GreenpointSav. Bank v McMann Enters., 214 AD2d 647, 648 [1995]; Rectory Realty Assoc. vTown of Southampton, 151 AD2d at 738).
In light of our determination, we need not reach the appellant's remaining contentions.Dillon, J.P., Florio, Chambers and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op32647(U).]