TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. ERIE CANAL HARBOR DEVELOPMENT CORPORATION (2019)

DiPizio Construction Company, Inc. (DiPizio) moves for intervention in this action pursuant to CPLR §§ 1012 (a) (2) and 1013. In April 2012, Erie Canal Harbor Development Corporation (Erie Canal) and DiPizio entered into an owner/contractor agreement for DiPizio to work as the general contractor for construction on the site of the former Memorial Auditorium. Travelers Casualty & Insurance Company of America (Travelers) issued surety bonds to DiPizio for the construction project, including a performance bond. Under the performance bond, Travelers agreed that if Erie Canal declared DiPizio in default, it would remedy the default by either completing or re-bidding the contract. Erie Canal declared DiPizio in default in 2013, and Travelers chose to complete the contract, as memorialized in a September 2013 takeover agreement.

DiPizio seeks to intervene to assert consequential damages for business loss against Erie Canal, but any claim for consequential damages by DiPizio now belongs to Travelers (see DiPizio Constr. Co. v. Erie Canal Harbor Dev. Corp., No. 2013-60266, 55 Misc 3d 1215 [A], 2015 WL 13284897 [Sup. Ct. Erie County Apr. 24, 2015], aff'd, 148 AD3d 1595 [4th Dept. 2017], lv denied, 151 AD3d 1783 [4th Dept. 2017]; DiPizio Construction Co. v. Erie Canal Harbor Dev. Corp., 151 AD3d 1750 [4th Dept. 2017], lv denied, 153 AD3d 1677 [4th Dept. 2017], lv denied, 30 NY3d 910 [2018]). A second basis given by DiPizio to intervene is to defend an alleged counterclaim by Erie Canal for attorney's fees and expenses. However, Erie Canal withdrew its counterclaims against DiPizio in 2015.

A motion to intervene under CPLR 1012 or 1013 must be timely (in re HSBC Bank U.S.A., 135 AD3d 534, 534 [1st Dept. 2016]; T & V Constr. Corp. v. Pratti, 72 AD3d 1065, 1066 [2nd Dept. 2010]). A motion to intervene is untimely if the intervention will unduly delay the action's determination or will “prejudice the substantial rights of any party” (CPLR 1013; U.S. Bank Nat'l. Ass'n. v. Bisono, 98 AD3d 608, 609 [2nd Dept 2012]). In this action, discovery was completed nearly one year ago, and Travelers filed the Note of Issue and Statement of Readiness on January 17, 2018. Since that time, Erie Canal and Travelers have engaged in extensive motion practice, including eight partial summary judgment motions. Allowing Dipizio to intervene would both prejudice Erie Canal and delay resolution of this action. Therefore, the court finds DiPizio's motion to intervene to be untimely and denies the motion.

Submit order.

Henry J. Nowak, J.