In this extensively litigated and highly contentious proceeding to judicially settle the account of the executor, Dominic, a son of the decedent, two additional applications were filed: an order to show cause by the temporary receiver seeking, inter alia, the secondary fiduciary appointments of an accountant, an appraiser and real estate broker; and Dominic’s motion seeking, inter alia, a stay of the court’s orders of March 17, 2017, April 17, 2017 and September 2018 (collectively “Orders”); leave for Dominic to intervene individually in this matter pursuant to CPLR 1012 (a) (3); reargument of the Orders pursuant to CPLR 2221; vacatur of the Orders pursuant to CPLR 5014(a) for both lack of subject matter jurisdiction and missing necessary parties. Dominic does not oppose the specific individuals sought to be appointed by the temporary receiver, instead he argues in favor of his motion by arguing he, individually, has a “direct and substantial interest in this proceeding and should be permitted to intervene”; the tenants have a direct and substantial interest and the court should not proceed without their presence; the court misapprehended the stay in place as Dominic was seeking to appeal “as of right” to the Court of Appeals; and the court exceeded its authority in directing the sale and partition of properties by the temporary as it involves a dispute among living parties. Therefore the court first considers Dominic’s motion.Although it is unnecessary to regurgitate the extensive history of this proceeding (see Matter of Eugene, NYLJ, Mar 18, 2017, at 24, col 1 [Sur Ct, Bronx County 2017], affd Matter of Eugene, 160 AD3d 506 [1st Dept 2018], rearg denied Matter of Eugene, 2018 NY Slip Op 79969 [U] [1st Dept 2018], appeal dismissed Matter of Eugene, 32 NY3d 1070 [2018]), the salient fact to this application is the genesis of the appointment of the temporary receiver at the outset: Dominic, acting by several counsel, stipulated to the sale of the realty, and the record demonstrated his dilatory and recalcitrant conduct demanded the appointment of the temporary receiver.An unreasonable delay in seeking intervention provides grounds to deny a motion to intervene (In re HSBC Bank U.S.A., 135 AD3d 534 [1st Dept. 2016]; see also RKH Holding Corp v. 207 Second Ave Realty Corp, 236 AD2d 254 [1st Dept 1997]). Seeking the intervention at this juncture is entirely unwarranted. Nonetheless, as the Appellate Division noted in affirming the court’s March 17, 2018 order:the record further reflects that in October 2014, [Dominic] stipulated to sell the properties at a mutually agreeable price. In his affidavit, he admitted he had offers to purchase the properties which he intended to accept…[Dominic] also stated that his various counsel were dilatory, without his consent, but he is responsible for failing to properly supervise and direct them (Matter of Eugene, 160 AD3d at 507 [1st Dept 2018] emphasis added).It is entirely disingenuous for Dominic to make this application at this juncture as it is utterly devoid of merit and demonstrates yet another attempt to delay the inevitable sale of the realty, which he agreed to at least as far back as October, 2014. Moreover, it is absurd to advance that Dominic should now be permitted to intervene individually, given his conduct in this estate thus far. Finally, assuming any argument raised by Dominic had merit, the time to raise the same has long since passed (see CPLR 2221 [d] [3]). The court will not countenance the further delay in the administration of this estate and permitting the temporary receiver to move forward with deliberate speed will further that end.Accordingly, this decision constitutes the order of the court granting the temporary receiver’s application and denying Dominic’s motion in all respects. As it appears that all of the recommended secondary appointments are not disqualified under the Part 36 Fiduciary Rules, Phillip Yanuk is appointed as an accountant; Joseph Mulle is appointed appraiser and Richard Dana is appointed real estate broker, and the temporary receiver is granted permission to enter into their separate agreements including paying the necessary retainers, upon their duly qualifying.The Chief Clerk is directed to mail a copy of this decision and Order to the parties.Proceed accordingly.
