CPLR § 1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

CPLR § 1013 Intervention by permission

Matter of Rapoport, 2012 NY Slip Op 00252 (1st Dept., 2012)

The Surrogate properly denied the proposed intervenors' request to intervene in the reformation proceeding regarding the testator's will. The proposed intervenors are not named in the will — a fact that they concede — and cannot fulfill the requirement under CPLR 1012 that the judgment may adversely affect their interests (see Matter of Vaughn, 267 AD2d 763, 763-64 [1999]; Matter of Flemm, 85 Misc 2d 855, 857 [1975]). Indeed, the proposed intervenors base their argument in favor of intervention on the occurrence of a contingent event that might or [*2]might not occur at an indeterminate time in the future. The distribution, if any, would rest in the executors' sole discretion. Thus, the proposed intervenors have no standing to intervene (see Matter of May, 213 AD2d 838, 839 [1995], lv dismissed 85 NY2d 1032 [1995]).


 American Home Mtge. Servicing, Inc. v Sharrocks, 2012 NY Slip Op 00918 (2nd Dept, 2012)

Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings" (Wells Fargo Bank, N.A. v McLean, 70 AD3d at 676- 677; see Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840, 843; Sieger v Sieger, 297 AD2d 33, 35-36; Perl v Aspromonte Realty Corp., 143 AD2d 824). In light of our determination that intervention was warranted pursuant to CPLR 1013, we need not determine whether intervention should have been permitted as of right under CPLR 1012(a).

A motion to consolidate two or more actions rests within the sound discretion of the trial court (see CPLR 602; Matter of Long Is. Indus. Group v Board of Assessors, 72 AD3d 1090, 1091; North Side Sav. Bank v Nyack Waterfront Assoc., 203 AD2d 439). Where common questions of law or fact exist, consolidation is warranted unless the opposing party demonstrates prejudice to a substantial right (see Alizio v Perpignano, 78 AD3d 1087, 1088; Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 855, 856; Glussi v Fortunre Brands, 276 AD2d 586).


In light of our determination consolidating the mortgage foreclosure action and the fraudulent conveyance action, the Supreme Court is now obligated to determine the allegations of [*3]fraudulent conveyance before entering any judgment in the consolidated action, including any judgment of foreclosure and sale, if warranted. Hence, there is no need to stay the foreclosure and sale pending resolution of the fraudulent conveyance action, and that branch of the appellant's motion which was for such a stay must be denied as unnecessary.

Breslin Realty Dev. Corp. v Shaw, 2012 NY Slip Op 00478 (2nd Dept., 2012)

We agree with the plaintiffs' contention that the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff should have been denied in its entirety. By the time Pecunies filed the motion, the litigating parties had already entered into a stipulation of settlement and this action was discontinued. Further, Pecunies was aware of this action from its inception, yet chose not to participate. Under these circumstances, there was no pending action in which to intervene, and the motion should have been denied in its entirety by the Supreme Court (see CPLR 1012, 1013; Carnrike v Youngs, 70 AD3d 1146; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737; 176 E. 123rd St. Corp. v Frangen, 67 Misc 2d 281).

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