| JP Morgan Chase Bank, N.A. v Kalpakis |
| 2012 NY Slip Op 00336 [91 AD3d 722] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| JP Morgan Chase Bank, National Association,Appellant, v Bette Kalpakis et al., Defendants, and Lythia A. Rousseas et al.,Intervenors-Defendants-Respondents. |
—[*1] Donald Pearce, New York, N.Y., for intervenors-defendants-respondents.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Suffolk County (Whelan, J.), dated March 8, 2011, asgranted that branch of the motion of Lythia A. Rousseas, Barbara M. Kalpakis, and Mark G.Kalpakis which was pursuant to CPLR 1012 (a) (3) for leave to intervene in the action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The subject property was owned by George Kalpakis until his death in 1995. According tothe affidavit of Lythia A. Rousseas, George Kalpakis died intestate, and his only heirs were hisfour children: Lythia A. Rousseas, Barbara Kalpakis, Mark Kalpakis, and James Kalpakis.Pursuant to a deed dated March 12, 2003, the subject property was purportedly transferred fromGeorge Kalpakis, who was then deceased, to Bette Kalpakis, James Kalpakis's wife. In 2007Bette Kalpakis executed a mortgage on the property in favor of the plaintiff's predecessor.
In April 2010 the plaintiff commenced this action to foreclose the mortgage. In December2010 Lythia A. Rousseas, Barbara Kalpakis, and Mark Kalpakis (hereinafter collectively themovants) moved, inter alia, pursuant to CPLR 1012 (a) (3) for leave to intervene in the action.The movants asserted that the deed dated March 12, 2003, was a forgery, and that they did notdiscover the fraud until 2009.
The Supreme Court properly granted that branch of the movants' motion which was pursuantto CPLR 1012 (a) (3) for leave to intervene in the action, as the movants established that theymay have an ownership interest in the property that is the subject of the foreclosure proceeding(see US Bank N.A. v Gestetner, 74AD3d 1538, 1541 [2010]; Greenpoint Sav. Bank v McMann Enters., 214 AD2d 647,647-648 [1995]). Contrary to the plaintiff's contention, it did not establish that the movants' claimto invalidate the deed dated March 12, 2003, was barred by the statute of limitations. Themovants' claim was asserted within two years of discovery of the fraud (see Piedra vVanover, 174 AD2d 191, 196 [1992]), and the plaintiff did not establish, as a matter of law,that the fraud could have been discovered earlier with reasonable diligence (see CPLR213 [8]; Sargiss v Magarelli, 12NY3d 527, [*2]532 [2009]; Citicorp Trust Bank, FSB v Makkas,67 AD3d 950, 953 [2009]). Skelos, J.P., Hall, Austin and Miller, JJ., concur. [PriorCase History: 30 Misc 3d 1236(A), 2011 NY Slip Op 50374(U).]