Commercial Division Blog

Posted: August 30, 2021 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Intervention/Joinder

A Party's Motion to Intervene Pursuant to C.P.L.R. 1012 Must Be Timely

On August 4, 2021, the Second Department issued a decision in 1077 Madison St., LLC v. Dickerson, 2021 NY Slip Op 04591, holding that a party seeking to intervene in a pending lawsuit pursuant to C.P.L.R. 1012(a)(3) must be timely and not delay resolution of the case or prejudice any party, explaining:

Pursuant to CPLR 1012(a)(3), "[u]pon timely motion, any person shall be permitted to intervene in any action . . . when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the [*2] person may be affected adversely by the judgment" (see JP Morgan Chase Bank, N.A. v. Edelson, 90 AD3d at 997). In considering whether a motion to intervene is timely, "courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party" (Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 AD3d 197, 201). Here, Quincy moved for leave to intervene approximately five years after the November 2013 conveyance and approximately seven months after the order and judgment of foreclosure and sale was issued. While it is undisputed that the notice of pendency had lapsed and a new one had not been filed by November 2013 when Quincy purchased the property, it is also undisputed that Quincy had actual notice of the open and unsatisfied mortgage at that time and it does not contend that it lacked actual notice of the plaintiff's claim (cf. Del Pozo v. Impressive Homes, Inc., 95 AD3d 1263, 1265).

The attorneys at Schlam Stone & Dolan frequently help clients intervene in ongoing litigation to protect their legal rights.

Contact our attorneys at if you or a client have questions regarding intervention in a pending legal action.