DEAN CAPITAL PARTNERS LLC v. FBE LLC (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the proposed intervenors FBE Holdings, LLC, JK–DSH, LLC, 556 Dean Investors, LLC, and Joseph Taub appeal from stated portions of an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated July 12, 2022.  The order, inter alia, denied that branch of the cross-motion of the proposed intervenors, FBE Holdings, LLC, JK–DSH, LLC, 556 Dean Investors, LLC, Richard A. Simeone, and Joseph Taub, which was pursuant to CPLR 1012(a) for leave to intervene by FBE Holdings, LLC, JK–DSH, LLC, 556 Dean Investors, LLC, and Joseph Taub.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In May 2018, the plaintiff commenced this action against the defendant third-party plaintiff, 556 Dean Holdings, LLC (hereinafter Dean Holdings), among others, to foreclose a mortgage.  The proposed intervenors, FBE Holdings, LLC, JK–DSH, LLC, 556 Dean Investors, LLC, Richard A. Simeone, and Joseph Taub (hereinafter collectively the proposed intervenors), purportedly on behalf of Dean Holdings, interposed an answer asserting counterclaims and third-party claims against, among others, the third-party defendant Tomohiki Shimura, alleging, among other things, breach of fiduciary duty.

In February 2022, the plaintiff and Shimura moved pursuant to CPLR 3211(a) to dismiss the answer interposed by the proposed intervenors.  The proposed intervenors opposed the motion and cross-moved, inter alia, pursuant to CPLR 1012(a) for leave to intervene.  In an order dated July 12, 2022, the Supreme Court, among other things, denied that branch of the cross-motion which was pursuant to CPLR 1012(a) for leave to intervene by FBE Holdings, LLC, JK–DSH, LLC, 556 Dean Investors, LLC, and Joseph Taub (hereinafter collectively the appellants).  This appeal ensued.

Intervention pursuant to CPLR 1012 requires a timely motion (see CPLR 1012;  U.S. Bank, N.A. v. Tsimbalisty, 181 A.D.3d 749, 750, 117 N.Y.S.3d 862).  “ ‘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’ ” (Wilmington Sav. Fund Socy., FSB v. Smalls, 228 A.D.3d 705, 706, 213 N.Y.S.3d 121 [internal quotation marks omitted], quoting U.S. Bank, N.A. v. Tsimbalisty, 181 A.D.3d at 750, 117 N.Y.S.3d 862;  see 1077 Madison St., LLC v. Dickerson, 197 A.D.3d 446, 447, 148 N.Y.S.3d 716).  “Another factor is the extent of the time lag between the making of the motion and the proposed intervenor's acquisition of knowledge of the circumstances upon which the motion for leave to intervene is based” (Federal Natl. Mtge. Assn. v. Jean, 189 A.D.3d 1178, 1180, 134 N.Y.S.3d 220 [internal quotation marks omitted];  see Bank of Am., N.A. v. New York City Envtl. Control Bd., 199 A.D.3d 874, 874–875, 154 N.Y.S.3d 469).

The Supreme Court properly denied that branch of the proposed intervenors’ cross-motion which was pursuant to CPLR 1012(a) for leave to intervene by the appellants (see Prompt Mtge. Providers of N. Am., LLC v. Zarour, 155 A.D.3d 912, 914, 64 N.Y.S.3d 106;  Moon Choung v. Allstate Ins. Co., 283 A.D.2d 468, 468, 724 N.Y.S.2d 882).  The cross-motion was made six years after the alleged misconduct and mortgage default and four years after the plaintiff commenced the instant action.  Under these circumstances, that branch of the cross-motion was untimely (see Phoenix Life Ins. Co. v. Jacob P Ilit A, 177 A.D.3d 1008, 1009, 111 N.Y.S.3d 201;  Castle Peak 2012–1 Loan Trust v. Sattar, 140 A.D.3d 1107, 1108, 35 N.Y.S.3d 368).

The parties’ remaining contentions either need not be reached in light of our determination, are improperly raised for the first time on appeal, or were improperly raised for the first time in the proposed intervenors’ reply papers before the Supreme Court.

CONNOLLY, J.P., CHAMBERS, DOWLING and GOLIA, JJ., concur.