You are here: / / APPELLANT, WHICH HAD PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION...
,

APPELLANT, WHICH HAD PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION WAS PENDING, SHOULD HAVE BEEN ALLOWED TO INTERVENE, CRITIERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to intervene in this foreclosure proceeding should have been granted. The foreclosure action was commenced by the plaintiff in 2007 and defendants never answered. When plaintiff moved for a default judgment, MAK (the appellant in this case), which had purchased the property while the foreclosure was pending, moved to intervene:

“Upon timely motion, any person shall be permitted to intervene in any action . . . 2. when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment; or 3. when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment” ([CPLR] § 1012[a]). “‘[I]ntervention may occur at any time, provided that it does not unduly delay the action or prejudice existing parties'” … . “[N]either 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” … . “‘In examining the timeliness of the motion, courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party'” … .

… MAK was entitled to intervene as of right “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” … . Under the circumstances, MAK’s cross-motion … was timely. “Significantly, it was made in response to the plaintiff’s motion … for leave to enter a default judgment and for an order of reference, . . . [and] since it was made before an order of reference or a judgment of foreclosure and sale was issued, the plaintiff was not prejudiced by the timing of the cross motion” … . HSBC Bank USA, N.A. v Islam, 2023 NY Slip Op 06356, Second Dept 12-13-24

Practice Point: Here the party which purchased the property while the foreclosure on the property was pending should have been allowed to intervene when the plaintiff moved for a default judgment and an order of reference. The criteria for a successful motion to intervene in this context are explained.

 

You might also like
FOOT OF A DECORATIVE FENCE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AS A MATTER OF LAW.
PLAINTIFF HOME HEALTH CARE WORKERS PROPERLY CERTIFIED TO BRING CLASS ACTION SUIT ALLEGING INADEQUATE PAY (SECOND DEPT).
THE MOTION TO CONSOLIDATE THE TRIALS OF TWO ACTIONS STEMMING FROM THE SAME FIRE, WHERE ONE PARTY WAS BOTH A DEFENDANT AND A PLAINTIFF, SHOULD HAVE BEEN GRANTED; ANY PREJUDICE RESULTING FROM THE JURY’S KNOWLEDGE OF THE EXISTENCE OF INSURANCE (ONE OF THE ACTIONS IS AGAINST AN INSURER) CAN BE HANDLED WITH JURY INSTRUCTIONS (SECOND DEPT). ​
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL ARGUED DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT WAS NOT VIABLE (SECOND DEPT). ​
UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION AS SANDOVAL EVIDENCE.
THE DAMAGES AMOUNT ASSESSED AGAINST THE DEFAULTING DEFENDANT IN THE INQUEST WAS EXCESSIVE (SECOND DEPT). ​
MATTER REMITTED FOR A REOPENED SUPPRESSION HEARING BASED UPON NEW EVIDENCE THAT THE VEHICLE STOP MAY HAVE BEEN BASED UPON INFORMATION FROM AN ANONYMOUS BYSTANDER (SECOND DEPT).
IN A REAR-END COLLISION CASE, IN ORDER TO RAISE A QUESTION OF FACT ABOUT WHETHER BRAKE-FAILURE WAS THE CAUSE, THE DEFENDANT MUST DEMONSTRATE THE FAILURE WAS UNANTICIPATED AND REASONABLE CARE WAS TAKEN TO KEEP THE BRAKES IN GOOD WORKING ORDER; NOT THE CASE HERE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN A TRAFFIC ACCIDENT CASE A PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN ONLY... THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE STATED CAUSES OF ACTION (1) FOR...