ATLAS MF MEZZANINE BORROWER LLC v. LLC (2019)

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered April 17, 2018, which denied proposed intervenor's (Global) motion to intervene, unanimously affirmed.

Global did not demonstrate that it will be bound by any judgment in this action (see CPLR 1012[a][2] ).  Indeed, its issues are not before the court in this action (see East Side Car Wash v. K.R.K. Capitol, 102 A.D.2d 157, 160, 476 N.Y.S.2d 837 [1st Dept. 1984], appeal dismissed 63 N.Y.2d 770, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [1984] ).  Whereas plaintiff's claims involve a $71 million mezzanine loan from defendant Macquarie Texas Loan Holder LLC to plaintiff Atlas Borrower, Global's claims involve a completely separate $3 million loan to nonparty Atlas Apartment Holdings, LLC (Holdings).  Moreover, Global is litigating its rights against Holdings in an action pending in Texas (see id.;  Ocelot Capitol Mgt., LLC v. Hershkovitz, 90 A.D.3d 464, 465, 934 N.Y.S.2d 146 [1st Dept. 2011] ).  Additionally, as any claim by Global as to excess proceeds is speculative, Global's reliance on CPLR 1012(a)(3), which provides that a party has the right to intervene in an action “when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment,” is misplaced.  Nor, contrary to Global's contention, do its claims and this action have a common question of fact or law (CPLR 1013;  see Taw Intl. Leasing v. Overseas Private Inv. Corp., 57 A.D.2d 799, 394 N.Y.S.2d 672 [1st Dept. 1977] ).