Opinion
509776/17
12-20-2019
WILLIAMSBURG UNITED LLC, Plaintiff, v. MYOUNG JA KIM, Defendants.
Attorney for proposed intervenor-defendant Ron Wish LLC, Edward A. Vincent, Esq., Borchert & LaSpina, P. C., 19-02 Whitestone Expy., Suite 302, Whitestone, NY 11357 Attorney for Plaintiff, Konstantinos G. Baltzis, Esq., Baltzis Daigle LLP, 444 Madison Avenue, 32nd Floor, New York, NY 10022 Attorney for Defendant Myoung Ja Kim, T. Stephen Song, Esq., Kim & Bae P.C., 40-21 Bell Blvd., 2nd Floor, Bayside, NY 11361
Attorney for proposed intervenor-defendant Ron Wish LLC, Edward A. Vincent, Esq., Borchert & LaSpina, P. C., 19-02 Whitestone Expy., Suite 302, Whitestone, NY 11357
Attorney for Plaintiff, Konstantinos G. Baltzis, Esq., Baltzis Daigle LLP, 444 Madison Avenue, 32nd Floor, New York, NY 10022
Attorney for Defendant Myoung Ja Kim, T. Stephen Song, Esq., Kim & Bae P.C., 40-21 Bell Blvd., 2nd Floor, Bayside, NY 11361
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by non party Ron Wish LLC (hereinafter the proposed intervenor defendant) on August 13, 2019, under motion sequence number five, for an order pursuant to CPLR 1012 (3) and 1013 granting leave to intervene and to file and serve an answer to plaintiff Williamsburg United LLC's (hereinafter WUL) complaint. The motion is opposed by defendant Myoung Ja Kim (hereinafter Kim).
Notice of Motion
Affirmation in Support
Affidavit in Support
Proposed Verified Answer
Exhibit A to I
Affirmation in Opposition by Defendant Kim
Exhibit 1 to 3
BACKGROUND
On May 17, 2017, WUL commenced the instant action seeking, inter alia, specific performance of a contract for the sale of real property by filing a summons and verified complaint and notice of pendency with the Kings County Clerk's Office. On February 12, 2018, defendant Kim interposed an answer to the verified complaint.
WUL's verified complaint contains thirty-four allegations of fact in support of three causes of action. The first cause of action is for specific performance. The second cause of action is for breach of contract. The third cause of action is for breach of implied covenant of good faith and fair dealing.
WUL's complaint alleges that the following salient facts. On February 14, 2017, Roni Mova (hereinafter Mova) entered into contract Kim to purchase real property owned by Kim located at 247 Varet Street, Brooklyn, New York for $1,700,000.00. It was understood that either Mova or an entity formed by him would be the buyer. On March 22, 2017 Mova assigned his rights under the contract to WUL and the contract was amended to reflect that WUL was the purchaser. In accordance with the contract terms WUL tendered a deposit in the amount of $170,000.00 to the Kim's counsel.
WUL contends that the closing was to be held on thirty days from March 22, 2017. On April 24, 2017, Kim sent a letter, setting the closing date for May 22, 2017 and indicated that time was of the essence. WUL sent a letter rejecting Kim's attempt to set a closing date for May 22, 2017 due to Kim's alleged failure to comply with pre-closure requirements in the contract. WUL alleges that Kim later declined to sell the property to the it although it was ready, willing and able to close.
MOTION PAPERS
Proposed intervenor defendant's motion papers consist of a notice of motion, an affirmation of counsel, an affidavit of Ron Wish, and nine annexed exhibits labeled A to I. Exhibit A is a copy of the contract of sale for the subject premises dated February 14, 2017. Exhibit B is a copy of the summons and verified complaint. Exhibit C is described as a printout from the ACRIS database records for the subject premises. It includes two pages titled Search Result by Parcel Indentifier from the New York City Department of Finance Office of the City Register. Exhibit D is a copy of the notice of pendency filed by plaintiff. Exhibit E is a copy of a promissory note dated June 9, 2017 that lists Ron Wish LLC as the lender and Green Cornerstone, Inc. as the borrower. Exhibit F is a copy of a commercial loan agreement dated June 9, 2017. Exhibit G and H are described as copies of recorded satisfaction of mortgages that previously encumbered the subject premises. Exhibit I is a copy of a closing statement.
Kim's opposition papers consist of an affirmation of counsel and three annexed exhibits labeled one to three. Exhibit one is a copy of deed for 247 Varet Street, Brooklyn, New York dated June 14, 2000. Exhibit two is described as a Title Continuation Report for the subject premises dated July 10, 2019. Exhibit three is a copy of a verified complaint in the matter of Ron Wish LLC v. Green Cornerstone, Inc. and Myoung Ja Kim, under Index Number 706686/2019 in Queens County Supreme Court.
LAW AND APPLICATION
A person is permitted to intervene in an action as of right when, among other things, the action involves the disposition or distribution of, the title or a claim for damages for injury to property and the person may be affected adversely by the judgment ( CPLR 1012[a][3] ; Phoenix Life Ins. Co. v. Ilit A , 177 AD3d 1008, 111 [2nd Dept 2019] ). Additionally, the court, in its discretion, may permit a person to intervene, among other things, when the person's claim or defense and the main action have a common question of law or fact ( CPLR 1013 ; Sclafani Petroleum, Inc. v. Calabro , 173 AD3d 1042, 1043[2nd Dept 2019] citing Roman Catholic Diocese of Brooklyn, NY v. Christ the King Regional High Sch. , 164 AD3d 1394, 1396 [2nd Dept 2018] ).
Intervention under CPLR 1012 and 1013 requires a timely motion ( Castle Peak 2012-1 Loan Tr. v. Sattar , 140 AD3d 1107, 1108 [2nd Dept 2016] ). Pursuant to CPLR 6501, the filing of a notice of pendency with the commencement papers of the instant action provided the world with constructive notice that the instant action was one in which the judgment demanded may affect the title to real property (Novastar Mtge., Inc. v. Mendoza , 26AD3d 479 [2nd Dept 2006] ). Here, the proposed intervenor defendant's motion was not timely, as it was made over two years after the instant action was commenced ( Fulton Holding Group, LLC v. Lindoff , 165 AD3d 1045, 1047 [2nd Dept 2018] citing Castle Peak 2012-1 Loan Trust v. Sattar , 140 AD3d 1107 at 1108 [2nd Dept 2016] ).
CONCLUSION
The motion of Ron Wish LLC for an order pursuant to CPLR 1012 (3) and 1013 granting leave to intervene and to file and serve an answer to plaintiff Williamsburg United LLC's complaint is denied as untimely.
The foregoing constitutes the decision and order of this Court.