152 OPERATING LLC v. [And Another Action] (2000)

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered May 12, 1998, which, in an action by plaintiff against defendant owner of real property for specific performance of a right of first refusal to purchase such property, denied proposed intervenor contract vendee's motion to intervene and canceled its notice of pendency against the property, unanimously affirmed, with costs.

 Any error committed in not granting the motion to intervene was rendered nonprejudicial by the leave given proposed intervenor to commence a separate action against the seller claiming, as the seller initially did in this action, that plaintiff forfeited its right of first refusal because it did not properly exercise it.   Similarly, any error committed in canceling proposed intervenor's notice of pendency has been rendered nonprejudicial by the preliminary injunction granted in that separate action prohibiting the seller from selling the property.   In short, proposed intervenor is in precisely the same position it would have been had it been permitted to intervene.   As the IAS court correctly perceived, the parties to this action were on the verge of a settlement when the motion to intervene was made, and there was nothing proposed intervenor could have done to prevent it.   Proposed intervenor's only viable remedy was to commence its own action against the owner.

MEMORANDUM DECISION.