| Castle Peak 2012-1 Loan Trust v Sattar |
| 2016 NY Slip Op 05111 [140 AD3d 1107] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| Castle Peak 2012-1 Loan Trust,Appellant, v Abdul Sattar et al., Defendants. Shelepers Corp., ProposedIntervenor-Respondent. |
Sheldon May & Associates, P.C., Farmingville, NY (Stim & Warmuth,P.C. [Glenn P. Warmuth], of counsel), for appellant.
David Bolton, P.C., Garden City, NY, for proposed intervenor-respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Bunyan, J.), dated May 6, 2014, which granted themotion of Shelepers Corp. pursuant to CPLR 1012 (a) (3) and 1013 for leave tointervene in the action as a defendant and pursuant to CPLR 3211 (a) to dismiss thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the motion ofShelepers Corp. pursuant to CPLR 1012 (a) (3) and 1013 for leave to intervene in theaction as a defendant and pursuant to CPLR 3211 (a) to dismiss the complaint isdenied.
By summons and complaint dated September 20, 2011, the plaintiff commenced thisaction against, among others, the defendant Abdul Sattar to foreclose a mortgage afterSattar defaulted on his mortgage payments. A notice of pendency was filed on November15, 2011. Sattar did not interpose an answer to the complaint and failed to appear at ascheduled foreclosure settlement conference. In light of Sattar's failure to appear oranswer the complaint, the plaintiff moved for an order of reference. While that motionwas pending, Sattar allegedly transferred title to the subject property to Shelepers Corp.(hereinafter Shelepers). In an order dated September 3, 2013, the Supreme Court grantedthe plaintiff's motion for an order of reference. By notice of motion dated January 2,2014, Shelepers moved pursuant to CPLR 1012 (a) (3) and1013 for leave to intervene inthe action as a defendant and pursuant to CPLR 3211 (a) to dismiss the complaint. In theorder appealed from, the court granted Shelepers' motion and directed the dismissal ofthe complaint. We reverse.
Intervention under CPLR 1012 and 1013 requires a timely motion (see CPLR1012, 1013; T & V Constr. Corp. v Pratti, 72 AD3d 1065, 1066 [2010]; Oparaji vWeston, 293 AD2d 592, 593 [2002]). Here, Shelepers purchased the subject propertywith the knowledge that this foreclosure action was pending, and yet it waited over fourmonths before seeking leave to intervene. Under the circumstances of this case,Shelepers' motion for leave to intervene in the action was untimely (see [*2]Wells Fargo Bank, N.A. v Mazzara, 124 AD3d875, 876 [2015]; U.S. BankN.A. v Bisono, 98 AD3d 608, 609 [2012]; JP Morgan Chase Bank, N.A. v Edelson, 90 AD3d 996,997 [2011]; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 738[1989]). Accordingly, the Supreme Court should have denied Shelepers' motion for leaveto intervene in the action and to dismiss the complaint. Dillon, J.P., Miller, Hinds-Radixand Brathwaite Nelson, JJ., concur.