CPLR §
1012 Intervention as of right; notice to attorney-general, city, county,
town or village where constitutionality in issue
CPLR
§
1013 Intervention by permission
T & V Constr. Corp. v Pratti, 2010 NY Slip Op 03433 (App. Div., 2nd, 2010)
Intervention under CPLR 1012 and CPLR 1013 requires a timely motion (see
CPLR 1012, 1013; Oparaji v Weston, 293 AD2d 592, 593; Rectory
Realty Assoc. v Town of Southampton, 151 AD2d 737). Here, the
motion of the proposed intervenor, U.S. Bank National Association, as
Trustee for Asset Backed Pass Through Certificates, Series 200-HE1
(hereinafter U.S. Bank), was untimely (see Oparaji v Weston, 293
AD2d at 593; Vacco v Herrera, 247 AD2d 608). U.S. Bank moved,
inter alia, pursuant to CPLR 1012 to intervene as of right in this
foreclosure action or, in the alternative, pursuant to CPLR 1013 for
leave to intervene in the action for the purpose of asserting a defense
based on the doctrine of equitable subrogation. The motion was made
approximately two years after the plaintiff filed its notice of
pendency, and approximately eight months after a judgment of foreclosure
and sale was entered in this action. The subject premises had already
been sold pursuant to the judgment of foreclosure and sale prior to U.S.
Bank's motion. The plaintiff would be prejudiced if it were required to
relitigate this foreclosure action, which has already been prosecuted
and completed (see Chesney v Chesney, 260 AD2d 340, 341; Rectory
Realty Assoc. v Town of Southampton, 151 AD2d at 738). Under these
circumstances, U.S. Bank was not entitled to intervene in the action (see
Carnrike v Youngs, 70 AD3d 1146, 1147; Oparaji v Weston, 293
AD2d at 593; Vacco v Herrera, 247 AD2d 608; Rectory Realty
Assoc. v Town of Southampton, 151 AD2d at 737-738).
The bold is mine.
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