OPARAJI v. WESTON

ORDERED that the appeal from so much of the order as denied that branch of the motion which was to stay the execution of the judgment is dismissed as academic; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

Intervention under CPLR 1012 and 1013 requires a timely motion (see CPLR 1012, 1013; Rectory Realty Assocs. v. Town of Southampton, 151 A.D.2d 737). The Supreme Court properly found that the motion of the proposed intervenor, Madison Queens-Guy Brewer, LLC (hereinafter Madison) was untimely (see Vacco v. Herrera, 247 A.D.2d 608). Madison sought leave to intervene to assert a proposed counterclaim challenging the judgment entered on November 2, 1998, against the defendant, Robert Weston. Madison had notice of the judgment since the plaintiff commenced a second action against it, inter alia, to set aside a conveyance made by Weston to Madison, allegedly to hinder Oparaji's enforcement of that judgment. Although Madison contested the validity of the judgment in the second action, it waited 20 months before making its motion. Accordingly, denial of the motion was proper. Moreover, the denial, as academic, of that branch of Madison's motion which was for consolidation was also correct. Finally, Madison's request for injunctive relief has been rendered academic because it satisfied the judgment in question while this appeal was pending.

ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and H. MILLER, JJ., concur.