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ALTHOUGH THE COURT DID NOT HAVE THE POWER TO GRANT THE MOTION TO INTERVENE BECAUSE THE PROPOSED ANSWER WAS NOT INCLUDED IN THE PAPERS, A THRESHOLD SHOWING INTERVENTION WAS WARRANTED WAS MADE AND THE DENIAL SHOULD HAVE BEEN “WITH LEAVE TO RENEW” (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the motion to intervene by Poloncarz was properly denied because the proposed answer was not included with the motion papers. but because Poloncarz made a showing warranting intervention, the motion should have been denied with leave to renew:

“A motion seeking leave to intervene, whether made under CPLR 1012 or 1013, must include the proposed intervenor’s . . . complaint or answer (CPLR 1014)” … . “The court has no power to grant leave to intervene where, as here, the prospective intervenor[ ] did not include in [his] motion papers ‘a proposed pleading setting forth the claim or defense for which intervention is sought'” … . Here, Poloncarz, in his official capacity as Erie County Executive, failed to include his proposed answer in his motion papers. Nevertheless, he made a threshold showing that his defense and the Nassau action have a common question of law and fact, that he has a real and substantial interest in the outcome of the proceedings, and that intervention will not unduly delay the determination of the Nassau action or prejudice the substantial rights of any party … . Accordingly, although the Supreme Court was “without the power to grant such relief inasmuch as [Poloncarz, in his official capacity as Erie County Executive,] has failed to comply with CPLR 1014,” the court should have denied the motion with leave to renew that branch of the motion which was for leave to intervene in the Nassau action on proper papers … . Landa v Poloncarz, 2023 NY Slip Op 01891, Second Dept 4-12-23

Practice Point: A court cannot grant a motion to intervene if the proposed complaint or answer is not submitted with the motion papers. Here, because a threshold showing intervention was appropriate was made, the denial should have been “with leave to renew.”

 

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