| Breslin Realty Dev. Corp. v Shaw |
| 2012 NY Slip Op 00478 [91 AD3d 804] |
| January 24, 2012 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Breslin Realty Development Corp. et al., Appellants, v J. Stanley Shaw et al., Defendants. Louis A. Russo, as Executor of Ronald Pecunies, Deceased, Proposed Intervenor-Respondent. |
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Jaspan Schlesinger LLP, Garden City, N.Y. (Steven R. Schlesinger and Joanne L. Oweis of counsel), for proposed intervenor-respondent.
In an action to recover damages for legal malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered November 20, 2009, as granted the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff to the extent of directing the plaintiffs' counsel to hold in escrow the sum of $117,120, purportedly representing the share of the proceeds of the settlement of this action claimed by Ronald Pecunies, for 30 days.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion for leave to intervene is denied in its entirety.
We agree with the plaintiffs' contention that the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff should have been denied in its entirety. By the time Pecunies filed the motion, the litigating parties had already entered into a stipulation of settlement and this action was discontinued. Further, Pecunies was aware of this action from its inception, yet chose not to participate. Under these circumstances, there was no pending action in which to intervene, and the motion should have been denied in its entirety by the Supreme Court (see CPLR 1012, 1013; Carnrike v Youngs, 70 AD3d 1146 [2010]; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737 [1989]; 176 E. 123rd St. Corp v Frangen, 67 Misc 2d 281 [1971]).
In any event, the relief granted by the Supreme Court, in the nature of establishing a temporary receivership, was improper because the settlement proceeds at issue here were not the subject of any action, and there was no clear evidentiary showing that the subject property was in imminent danger of irreparable loss or waste (see CPLR 6401 [a]; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632 [2008]; Singh v Brunswick Hosp. Ctr., 2 AD3d 433 [2003]; Matter of Armienti & Brooks, 309 AD2d 659, 661 [2003]; Schachner v Sikowitz, 94 AD2d 709 [1983]). [*2]
In light of our determination, we need not address the plaintiffs' remaining contentions. Mastro, A.P.J., Balkin, Chambers and Roman, JJ., concur.