Motion to Intervene in New York

What Is a Motion to Intervene?


A person may intervene in an action “where they have a bona fide interest in an issue involved in that action.” (Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201 [1st Dept. 2010].)

How to Structure the Motion

“Upon timely motion, any person may be permitted to intervene in any action when a statute of the state confers a right to intervene in the discretion of the court, or when the person’s claim or defense and the main action have a common question of law or fact.” (Civ. Prac. Law & Rules, § 1013; Civ. Prac. Law & Rules, § 1012.)

A person may intervene as of right “when the representation of the person’s interests by the parties is or may be inadequate and the person is or may be bound by the judgment.” (Civ. Prac. Law & Rules, § 1012(a)(2); Berkoski v. Bd. of Trustees of Inc. Vil. of Southhampton, 67 A.D.3d 840, 843 [2nd Dept. 2009].) A person may also intervene as of right “when the action involves the disposition or distribution of… property and the person may be affected adversely by the judgment.” (Civ. Prac. Law & Rules, § 1012(a)(3); Wells Fargo Bank, Ntl. Assn. v. McLean, 70 A.D.3d 676 [2nd Dept. 2010].)

The Court’s Decision

The “general rule is that intervention should be permitted.” (Matter of N.Y. Cty. Lawyers’ Ass’n. V. Bloomberg, 908 N.Y.S.2d 872, 873 [Sup. Ct. N.Y. Cty. 2010].) “Intervention is always a matter of judicial discretion -- never of right.” (Doe v. County of Westchester, 45 A.D.2d 308, 312 [2nd Dept. 1974].)

“In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.” (Civ. Prac. Law & Rules, § 1013.) The court should also consider the extent to which the proposed intervenor has “a real and substantial interest in the outcome of the action.” (Matter of Bernstein v. Feiner, 43 A.D.3d 1161, 1162 [2nd Dept. 2007].) Finally, the court should consider the timeliness of the motion to intervene. (Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 200-01 [1st Dept. 2010].

It makes very little difference, as a practical matter, whether intervention is sought under Section 1012 or Section 1013 of Civil Practice Law and Rules. (Berkoski v. Trustees of Incorporated Village of Southampton, 67 A.D.3d 840, 843 [2nd Dept. 2009].) This is “because ‘under liberal rules of construction,’ intervention ‘should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings.’” (Id.) The distinction between intervention as of right and permissive intervention is not “sharply applied.” (Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201 [1st Dept. 2010]; Global Team Vernon, LLC v. Vernon Realty Holding, LLC, 93 A.D.3d 819, 820 [2nd Dept. 2012].)


Courts begin the analysis of whether the motion to intervene is timely by asking whether intervention would prejudice any party. (Jones v. Town of Carroll, 158 A.D.3d 1325, 1328 [4th Dept. 2018].) “In examining the timeliness of [a] motion [to intervene], courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party.” (Id.)


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