LNV CORPORATION v. 19738 LLC (2025)

DECISION & ORDER

In an action to foreclose a mortgage, nonparty 19738 Nashville, LLC, appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered June 22, 2023.  The order denied the motion of nonparty 19738 Nashville, LLC, inter alia, for leave to intervene in the action and to vacate an order and judgment of foreclosure and sale (one paper) of the same court entered May 24, 2016.

ORDERED that the order is affirmed, with costs.

In 2014, the plaintiff commenced this action against, among others, the defendant Eric M. King to foreclose a mortgage on certain real property located in Queens (hereinafter the property).  In May 2016, an order and judgment of foreclosure and sale was entered, and the plaintiff took title to the property by referee's deed dated August 5, 2016.

In October 2022, nonparty 19738 Nashville, LLC (hereinafter Nashville), moved, inter alia, for leave to intervene in the action and to vacate the order and judgment of foreclosure and sale.  In support of its motion, Nashville contended that it had obtained an ownership interest in the property “by way of a chain of deeds from the heirs-at-law of homeowner/named defendant Eric King” and that, because neither it or its predecessors-in-interest were made parties to the instant foreclosure action, their ownership interest remained intact.  The plaintiff opposed.  By order entered June 22, 2023, the Supreme Court denied Nashville's motion.  Nashville appeals.

“Intervention pursuant to CPLR 1012 or 1013 requires a timely motion” (Bank of Am., N.A. v. New York City Envtl. Control Bd., 199 A.D.3d 874, 874, 154 N.Y.S.3d 469;  see JPMorgan Chase Bank, N.A. v. Mule, 230 A.D.3d 1234, 1235, 216 N.Y.S.3d 730).  “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” (Bank of Am., N.A. v. New York City Envtl. Control Bd., 199 A.D.3d at 874, 154 N.Y.S.3d 469 [internal quotation marks omitted]).  “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” (U.S. Bank, N.A. v. Tsimbalisty, 181 A.D.3d 749, 750, 117 N.Y.S.3d 862;  see Bank of Am., N.A. v. New York City Envtl. Control Bd., 199 A.D.3d at 874–875, 154 N.Y.S.3d 469).

Here, Nashville only moved to intervene in the instant foreclosure action in October 2022, which, as Nashville concedes, was approximately 20 months after its predecessor-in-interest had filed a plenary action seeking related relief and approximately 8 months after the plenary action was dismissed.  Further, Nashville failed to demonstrate when it actually became aware of the instant foreclosure action or otherwise explain its delay in moving for leave to intervene.  Nashville's motion was also made more than six years after the order and judgment of foreclosure and sale was entered and the property was sold at auction.  Under the circumstances, the Supreme Court properly denied that branch of Nashville's motion which was for leave to intervene (see Genzler v. JPMorgan Chase Bank, N.A., 228 A.D.3d 838, 840, 214 N.Y.S.3d 92;  U.S. Bank, N.A. v. Tsimbalisty, 181 A.D.3d at 751, 117 N.Y.S.3d 862;  Federal Natl. Mtge. Assn. v. Sanchez, 172 A.D.3d 1005, 1006, 98 N.Y.S.3d 475).

The parties’ remaining contentions need not be reached in light of the foregoing.

DUFFY, J.P., BRATHWAITE NELSON, WARHIT and TAYLOR, JJ., concur.