Summary
In Acadia Realty L.P. v Ringel, 129 AD3d 511 (1st Dept 2015), a nonparty sought to intervene in the action, as well as to vacate a default judgment entered in favor of plaintiff as against the defendants.
Summary of this case from Weiss v. Ampton Invs., Inc.Opinion
15410N, 652054/13
06-11-2015
ACADIA REALTY LIMITED PARTNERSHIP, Plaintiff–Respondent, v. Benjamin O. RINGEL, et al., Defendants. RCG LV Debt IV Non–REIT Assets Holdings, LLC, Proposed Intervenor–Appellant.
Stroock & Stroock & Lavan, LLP, New York (Daniel A. Ross of counsel), for appellant. Otterbourg P.C., New York (Adam C. Silverstein of counsel), for respondent.
Stroock & Stroock & Lavan, LLP, New York (Daniel A. Ross of counsel), for appellant.Otterbourg P.C., New York (Adam C. Silverstein of counsel), for respondent.
TOM, J.P., RENWICK, ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about December 12, 2014, which denied proposed intervenor's motion to intervene in this action and to vacate the default judgment in favor of plaintiff Acadia Realty Limited Partnership, and against defendants AC I Manahawkin LLC and AC I Manahawkin Mezz LLC, unanimously affirmed, with costs.
While the motion to intervene by proposed intervenor RCG LV Debt IV Non–REIT Assets Holdings, LLC (RCG) is timely (see Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201, 906 N.Y.S.2d 231 [1st Dept.2010] ), RCG has failed to demonstrate that it is entitled to intervene in this action for the purpose of trying to vacate a judgment entered on default against the Manahawkin defendants. The default judgment has no res judicata effect on RCG because a default is not a determination on the merits (see Amalgamated Bank v. Helmsley–Spear, Inc., 109 A.D.3d 418, 419, 970 N.Y.S.2d 522 [1st Dept.2013], leave dismissed 22 N.Y.3d 1148, 984 N.Y.S.2d 288, 7 N.E.3d 501 [2014] ).
Moreover, RCG has no “real, substantial interest in the outcome of this litigation” (Yuppie Puppy Pet Prods., Inc., 77 A.D.3d at 201, 906 N.Y.S.2d 231 ), since its right to recover on its loan was not cut off by the judgment. The fact that plaintiff might be paid before RCG in the related bankruptcy proceedings is an insufficient basis for RCG's intervention here (see Gladstein v. Martorella, 75 A.D.3d 465, 466, 904 N.Y.S.2d 418 [1st Dept.2010] ; Taw Intl. Leasing v. Overseas Private Inv. Corp., 57 A.D.2d 799, 799–800, 394 N.Y.S.2d 672 [1st Dept.1977] ). RCG has also failed to demonstrate that it has a meritorious defense; indeed, it raises no defenses of its own (see Amalgamated Bank v. Helmsley–Spear, Inc., 109 A.D.3d at 420, 970 N.Y.S.2d 522 ).
Nor is RCG an interested party (see Nachman v. Nachman, 274 A.D.2d 313, 315, 710 N.Y.S.2d 357 [1st Dept.2000] ). Further, judicial assistance is not required to avoid injustice, since the Manahawkin entities have twice tried, and failed, to vacate the judgment relying on the same arguments made here by RCG (id ).