Sheldon May & Associates, P.C., Farmingville, N.Y. (Stim & Warmuth, P.C. [Glenn P. Warmuth ], of counsel), for appellant.
David Bolton, P.C., Garden City, N.Y., for proposed intervenor-respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated May 6, 2014, which granted the motion of Shelepers Corp. pursuant to CPLR 1012(a) (3) and 1013 for leave to intervene in the action as a defendant and pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is reversed, on the law, with costs, and the motion of Shelepers Corp. pursuant to CPLR 1012(a)(3) and 1013 for leave to intervene in the action as a defendant and pursuant to CPLR 3211(a) to dismiss the complaint is denied.
By summons and complaint dated September 20, 2011, the of reference. By notice of motion dated January 2, 2014, Shelepers moved pursuant to CPLR 1012(a)(3) and 1013 for leave to intervene in the action as a defendant and pursuant to CPLR 3211(a) to dismiss the complaint. In the order appealed from, the court granted Shelepers' motion and directed the dismissal of the complaint. We reverse.
Intervention under CPLR 1012 and 1013 requires a timely motion (see CPLR 1012, 1013 ; T & V Constr. Corp. v. Pratti, 72 A.D.3d 1065, 1066, 898 N.Y.S.2d 875 ; Oparaji v. Weston, 293 A.D.2d 592, 593, 740 N.Y.S.2d 238 ). Here, Shelepers purchased the subject property with the knowledge that this foreclosure action was pending, and yet it waited over four months before seeking leave to intervene. Under the circumstances of this case, Shelepers' motion for leave to intervene in the action was untimely (see Wells Fargo Bank, N.A. v. Mazzara, 124 A.D.3d 875, 876, 2 N.Y.S.3d 553 ; U.S. Bank N.A. v. Bisono, 98 A.D.3d 608, 609, 949 N.Y.S.2d 652 ; JP Morgan Chase Bank, N.A. v. Edelson, 90 A.D.3d 996, 997, 934 N.Y.S.2d 847 ; Rectory Realty Assoc. v. Town of Southampton, 151 A.D.2d 737, 738, 543 N.Y.S.2d 128 ). Accordingly, the Supreme Court should have denied Shelepers' motion for leave to intervene in the action and to dismiss the complaint.