X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

By Dillon, J.P.; Lasalle, Connolly, Wooten, JJ.

BANK OF AMERICA, NA, ETC., res, v. KATHLEEN O. NOCELLA, ETC., ET AL., def; HENRY IRVING, LLC, nonparty-app — (Index No. 37882/11) Lester & Associates, P.C. (Mavrides, Moyal, Packman & Sadkin, LLP, Lake Success, NY [Tal Z. Stanecky], of counsel), for nonparty-appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Ruth O’Connor of counsel), for respondent. In an action to foreclose a mortgage, nonparty Henry Irving, LLC, appeals from two orders of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), both dated June 21, 2018. The first order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment and for an order of reference, and denied that branch of the cross motion of nonparty Henry Irving, LLC, which was for leave to intervene in the action. The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. ORDERED that the first order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff’s motion which was for an order of reference, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the cross motion of nonparty Henry Irving, LLC, which was for leave to intervene in the action, and substituting therefor a provision granting that branch of the cross motion; as so modified, the first order is affirmed insofar as appealed from, and so much of the second order as granted that branch of the plaintiff’s motion which was for an order of reference and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further, ORDERED that the appeal from so much of the second order as granted that branch of the plaintiff’s motion which was for an order of reference and appointed a referee to compute the amount due to the plaintiff is dismissed as academic in light of our determination on the appeal from the first order; and it is further, ORDERED that the second order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to nonparty Henry Irving, LLC. The plaintiff commenced this action to foreclose a mortgage given by the defendant Kathleen O. Nocella. Nocella defaulted in appearing in the action. During the pendency of the action, nonparty Henry Irving, LLC (hereinafter the appellant), acquired title to the subject property. In September 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The appellant cross-moved, inter alia, for leave to intervene in the action. In an order dated June 21, 2018, the Supreme Court, inter alia, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment and for an order of reference, and denied that branch of the appellant’s cross motion which was for leave to intervene in the action. In a second order also dated June 21, 2018, the court granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. The Supreme Court should have granted that branch of the appellant’s cross motion which was for leave to intervene in the action. The appellant was entitled to intervene as of right pursuant to CPLR 1012(a) since it established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3]; 6501; US Bank N.A. v. Carrington, 179 AD3d 743; Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 AD3d 197, 201). Contrary to the court’s determination, neither the fact that the appellant obtained its interest in the subject property after this action was commenced and the notice of pendency was filed, nor the fact that the defendants defaulted in answering or appearing, definitively bars intervention (see Consumer Solutions, LLC v. Charles,187 AD3d 1134, 1135; US Bank N.A. v. Carrington, 179 AD3d at 743-744; Citimortgage, Inc. v. Dulgeroff, 138 AD3d 419, 419; Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 AD3d at 201). Moreover, since the appellant’s cross motion, inter alia, for leave to intervene was made before an order of reference or judgment of foreclosure and sale was issued, the plaintiff was not prejudiced by the timing of the cross motion (see US Bank N.A. v. Carrington, 179 AD3d at 744; ABM Resources Corp. v. Doraben, Inc., 89 AD3d 773, 774). Since the appellant’s intervention in the action was warranted, it follows, therefore, that the court should have denied that branch of the plaintiff’s motion which was for an order of reference (cf. US Bank N.A. v. Carrington, 179 AD3d at 743-744). Accordingly, the Supreme Court should have granted that branch of the appellant’s cross motion which was for leave to intervene in the action and denied that branch of the plaintiff’s motion which was for an order of reference. The appellant’s remaining contentions are without merit. DILLON, J.P., LASALLE, CONNOLLY and WOOTEN, JJ., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

New York Legal Awards 2021

October 13, 2021
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Register

BenefitsPRO Broker Expo 2021

May 18, 2021 - August 18, 2021
Virtual / San Diego, CA

The premier educational and networking event for employee benefits brokers and agents.


Register

African Legal Awards 2021

September 03, 2021
TBD

The African Legal Awards are set out to recognise exceptional achievement from Africa s legal elite.


Register

Attorney

Newark, Nj Or New York, Ny, New Jersey, United States

Gibbons is seeking an associate with six (6) or more years of experience, practicing in New Jersey and New York, in Products /Liability/Phar...


Apply Now ›

Litigation Attorney

Central New Jersey, New Jersey, United States

Established Central New Jersey law firm seeks an associate with two to five years' experience to join the Plaintiff Personal Injury Departme...


Apply Now ›

Attorney

Newark, New Jersey, United States

Gibbons is seeking an associate with three (3) or more years of experience practicing in employment law with particular emphasis on employme...


Apply Now ›

FLB LAW

08/02/2021
Connecticut Law Tribune


View Announcement ›

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN

07/27/2021
TLI Web

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN is pleased to welcome Frank Breitman, Esq. a talented and respected litigator to our ranks of trial lawyers.


View Announcement ›

HARWOOD LLOYD, LLC

07/26/2021
NJLJ Web

HARWOOD LLOYD, LLC Welcomes Beth L. Barnhard, Esq. Beth has joined the firm as Counsel in the Wills, Trusts and Estates Department. She is Certified to be an Elder Law Attorney (CELA) by the ABAaccredited National Elder Law Foundation.


View Announcement ›