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A.F.C. Enterprises, Inc. v. New York City School Construction Authority

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 23, 2010

A.F.C. ENTERPRISES, INC., PLAINTIFF,
v.
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY (MAXWELL HIGH SCHOOL), RESPONDENT; AMERICAN HOME ASSURANCE COMPANY, PROPOSED INTERVENOR-APPELLANT.

In an action, inter alia, to recover damages for breach of contract, the proposed intervenor American Home Assurance Company appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated January 7, 2008, which denied its motion for leave to intervene, to vacate a stay of the action pending the completion of federal criminal proceedings in an action entitled United States v Catapano, pending in the Unites States District Court for the Eastern District of New York under Docket No. 05-CR-229, and to sever a cause of action assigned by it to the plaintiff so that it may proceed to trial.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, CHERYL E. CHAMBERS and PLUMMER E. LOTT, JJ.

(Index No. 15956/96)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Contrary to the proposed intervenor's contention, its motion for leave to intervene was untimely, and granting that motion would result in prejudice to the defendant, including the possibility of inconsistent verdicts and the burden of separately trying two related claims (see CPLR 1012[a]; 1013; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 738; Matter of Norstare Apts. v Town of Clay, 112 AD2d 750, 751).

In any event, even if the motion was timely, the proposed intervenor was not entitled to intervene in this action (see CPLR 1012[a][2]). The proposed intervenor's interest is adequately represented by the plaintiff, who, pursuant to a cooperation agreement between them, is under a fiduciary duty to separately identify the proposed intervenor's claim and "vigorously and promptly" prosecute it. If there is a recovery, the plaintiff and the proposed intervenor are required to share the proceeds according to a distribution formula.

The denial of leave to intervene at this time was a provident exercise of the Supreme Court's discretion (see CPLR 1013; Osman v Sternberg, 168 AD2d 490).

The proposed intervenor's remaining contentions are academic in light of our determination.

COVELLO, J.P., SANTUCCI, CHAMBERS and LOTT, JJ., concur.

20100323

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