PENNYMAC CORP v. 194 (2026)

DECISION & ORDER

In an action to foreclose a mortgage, nonparty 194 Grant Corp. appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated May 18, 2023.  The order denied that nonparty's motion pursuant to CPLR 1012 and 1013 for leave to intervene in this action and, thereupon, inter alia, pursuant to CPLR 5015(a)(3) and in the interests of substantial justice to vacate an amended judgment of foreclosure and sale of the same court (Mark I. Partnow, J.) dated August 13, 2019.

ORDERED that the order is affirmed, with costs.

In July 2008, the plaintiff's predecessor in interest commenced this action against Beverly Anthony, among others, to foreclose a mortgage on certain real property located in Brooklyn (hereinafter the property).  At the time of the commencement of the action, the plaintiff's predecessor in interest filed a notice of pendency against the property.  In March 2017, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment against all non-answering defendants, including Anthony, to substitute the plaintiff for its predecessor in interest in this action, and for an order of reference.  In August 2019, the court issued an amended judgment of foreclosure and sale, directing the sale of the property (hereinafter the 2019 amended judgment of foreclosure and sale).

In August 2022, nonparty 194 Grant Corp. (hereinafter 194 Grant) moved pursuant to CPLR 1012 and 1013 for leave to intervene in this action, alleging, among other things, that on August 19, 2008, it purchased the property from Anthony and, thereupon, inter alia, pursuant to CPLR 5015(a)(3) and in the interests of substantial justice to vacate the 2019 amended judgment of foreclosure and sale.  The plaintiff opposed.  In an order dated May 18, 2023, the Supreme Court denied 194 Grant's motion as untimely.  194 Grant appeals.

“Intervention under CPLR 1012 or 1013 requires a timely motion” (Wells Fargo Bank, N.A. v. Gray, 238 AD3d 1098, 1099 [internal quotation marks omitted];  see Castle Peak 2012–1 Loan Trust v Sattar, 140 AD3d 1107, 1108).  In determining the timeliness of a motion for leave to intervene, courts consider, among other things, “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” (Wells Fargo Bank, N.A. v. Gray, 238 AD3d at 1099–1100 [internal quotation marks omitted];  see U.S. Bank, N.A. v. Tsimbalisty, 181 AD3d 749, 750).

Here, as the Supreme Court properly determined, the filing of a notice of pendency at the time of the commencement of the action provided constructive notice of the action (see CPLR 6501).  Since 194 Grant's title to the property was recorded after the filing of the notice of pendency, 194 Grant is bound by all proceedings taken in the action after that filing to the same extent as if it were a party to the action (see Bank of Am., N.A. v. Burton, 233 AD3d 644, 645;  Wells Fargo Bank, N.A. v. Lance, 196 AD3d 535, 536).  194 Grant did not move for leave to intervene in this action until August 2022—approximately 14 years after it allegedly took title to the property—and failed to offer any reason for the delay in moving for that relief.  Accordingly, the court providently exercised its discretion in denying, as untimely, those branches of 194 Grant's motion which were pursuant to CPLR 1012 and 1013 for leave to intervene in this action (see Wells Fargo Bank, N.A. v. Gray, 238 AD3d at 1099).

Moreover, although there is no specific time limit within which to move for vacatur under CPLR 5015(a)(3), the motion must be made within a reasonable time (see Wells Fargo Bank, N.A. v. Olivo, 241 AD3d 763, 765;  Empire State Conglomerates v. Mahbur, 105 AD3d 898, 899).  Here, since the 2019 amended judgment of foreclosure and sale was issued in August 2019 and 194 Grant did not move to vacate it until August 2022, three years later, the Supreme Court also providently exercised its discretion in denying, as untimely, that branch of 194 Grant's motion which was pursuant to CPLR 5015(a)(3) to vacate the 2019 amended judgment of foreclosure and sale (see Wells Fargo Bank, N.A. v. Olivo, 241 AD3d at 765).

Although a court has the inherent discretionary authority to vacate its own judgment in the interests of substantial justice when unique or unusual circumstances warrant such relief (see Brown–Wilks v. Vornado Realty Trust, 247 AD3d 706, 708), no such circumstances are present here.  Accordingly, the Supreme Court properly denied that branch of 194 Grant's motion which was to vacate the 2019 amended judgment of foreclosure and sale in the interests of substantial justice.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

DUFFY, J.P., CHRISTOPHER, LANDICINO and QUIRK, JJ., concur.