The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Keila Yahaira Heredia Mendez ("Mendez"), as the guardian and next friend of Keirys Orlayne ("Orlayne"), purportedly a minor child of decedent Orlando Matos Perez, has moved to intervene in the above-captioned action pursuant to Rule 24 of the Federal Rules of Civil Procedure.
For the following reasons, that motion is denied at this time, with leave to renew if the Surrogate's Court of Suffolk County determines that Orlando Matos is the father of Orlayne.
As proposed guardian of Orlayne, plaintiff Antonio Matos ("Matos") on September 23, 2002 commenced this suit alleging wrongful death, negligence, products liability and breach of warranty against defendants American Airlines, Inc. ("American") and Airbus Industries, G.I.E. ("Airbus") for the death of Orlayne's purported father, decedent Orlando Matos, in the crash of American Airlines Flight 587 on November 12, 2001.
Prior to the commencement of this action, on April 30, 2002, Mendez filed an action on behalf of Orlayne in Texas state court, case No. 15319272202, in the District Court of Tarrant County, Texas.
Mendez is a citizen of the Dominican Republic and has lived in the Dominican Republic with Orlayne for the child's entire life. Mendez is not the lawful wife of decedent Orlando Matos, nor did she ever reside with him. She is not in the line of distribution to the Estate of Orlando Matos.
Orlayne has never been to the State of New York, has never resided with Matos, nor been in his care. Orlayne does not have property in the State of New York. Further, decedent's paternity of Orlayne has yet to be established, and the issue is currently pending before the Surrogate's Court of Suffolk County. Matos, the father of decedent, has petitioned for Letters of Guardianship over the Property of Orlayne and for Letters of Administration of the Estate of decedent. The parties agree that Matos will not be in the line of distribution of the Estate of Orlando Matos unless it is determined that Orlayne is not decedent's child.
Pursuant to Fed.R.Civ.P. 24(a)(2), a party may intervene as of right upon timely application "when the applicant claims an interest relating to the property or transaction which is the subject of the action, and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
Mendez has failed to show that she has an interest relating to the property that is the subject of the action because decedent's paternity of Orlayne has not yet been established. For an interest to be cognizable under Rule 24(a)(2), it must be "direct, substantial, and legally protectable." United States v. Peoples Benefit Life Ins. Co., 271 F.3d 411, 415 (2d Cir. 2001) (quoting Washington Elec. Corp., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990)). An interest that is remote from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule. Id. see also American Lung Ass'n v. Reilly, 141 F.R.D. 19 (E.D.N.Y. 1992) (rejecting argument that Rule 24(a)(2) requires only that an intervener have a "potential interest" in lawsuit). Because Mendez's stated interest is contingent upon the determination of decedent's paternity of Orlayne, it is contingent on a sequence of events before it becomes colorable. As a result, Mendez has failed to demonstrate that she has a cognizable interest in the instant action and thus may not intervene as of right.
Fed.R.Civ.P. 24(b)(2), governing permissive intervention, permits intervention upon timely application where "an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Fed.R.Civ.P. 24(b)(2). To allow intervention prior to such time as decedent's paternity has been established by the Surrogate's Court may unduly prejudice the instant action. If paternity is not established, there is no need for intervention. If paternity is established, Mendez has failed to show that her rights — which are in fact based upon the right of her daughter Orlayne — would be prejudiced by not being allowed to intervene at this time.
Of course, timeliness is one factor in the analysis of whether intervention should be allowed. Fed.R.Civ.P. 24(a); 24(b). In light of the above ruling and Matos's arguments in support of it, Matos shall not be permitted to raise lack of timeliness in opposition to a renewal of this motion, if Mendez renews her motion within 20 (twenty) days of the determination of the Surrogate's Court that decedent was the father of Orlayne or within 20 (twenty) days of the issuance of this opinion if the Surrogate's Court has already so decided, whichever is later.
For the foregoing reasons, Mendez's motion to intervene is denied, with leave to renew within 20 (twenty) days after the determination of the Surrogate's Court of decedent's paternity of Orlayne or within 20 (twenty) days of the issuance of this opinion if the paternity ...